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Battle of the Wills: properly executed Will prevails over home-made Will

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By Deborah Kliger, Lawyer, MST Lawyers

With ready access to Will kits and online Will resources, it can be tempting to adopt a “do it yourself” approach to preparing your Will. No matter how small your estate is, or how simple your intentions may be, making a Will without seeking legal advice is fraught with risk.

To constitute a valid Will, there must be a written document signed by the will-maker in the presence of two witnesses. In most instances, home-made Wills are not executed in accordance with these legal formalities. The executor of an improperly executed (“informal”) Will is faced with the expensive (and often fruitless) task of applying for probate of the informal Will.

In a recent Victorian Supreme Court case, the court rejected an application for probate of an informal Will, in circumstances where the deceased left an earlier, properly executed Will.

In or around January 1997 the deceased instructed his lawyer to prepare a Will (“the 1997 Will”). The deceased properly executed this Will on 19 January 1997. Under the 1997 Will, the deceased left his property at Launching Place to his then partner, Ms Wood. The deceased’s residuary estate was also gifted to Ms Wood. The deceased and Ms Wood later separated and resolved all financial aspects of their relationship. Despite this, the deceased did not make a new Will.

The 2009 informal Will

The deceased was due to undergo shoulder surgery on 16 July 2009. In anticipation of surgery, the deceased prepared a document purporting to be his Will (“the informal Will”). On 15 July 2009 the deceased executed the informal Will, however, no witnesses signed the document. By the informal Will, the deceased appointed Ms Barley, the daughter of his half-brother, executor and gave some unclear directions for the sale of his possessions, various gifts and division of his remaining money between both sides of his family. In addition, the informal Will provided that Ms Barley and her partner receive an “extra half for the kids”.

The deceased’s relationship with Ms Bell from 2010 onward

In late 2010 the deceased met Ms Bell via an online dating website. Within weeks they commenced a relationship which remained on foot until the deceased’s death. Ms Bell moved into the Launching Place property together with the deceased. She made significant financial contributions towards the relationship including purchasing tools for the deceased’s business, financing his motorcycle passion and later rolling her superannuation into a pension to maintain their lifestyle. At his death, the deceased owed Ms Bell the sum of $20,000. After his passing, Ms Bell continued to pay expenses on behalf of the deceased including vehicle and property insurance, increasing the deceased’s liability to Ms Bell to $50,000.

In spite of this, the deceased did not amend his Will at any time after commencing a relationship with Ms Bell. Accordingly, Ms Bell would not receive any benefits under the deceased’s 1997 Will or his 2009 informal Will.

The court applications to prove the 1997 Will and informal Will

Shortly after the deceased’s death, Ms Bell contacted Ms Wood, the deceased’s former partner and executor under his 1997 Will. Ms Bell asked Ms Wood to assist her in applying for probate of the 1997 Will. Ms Wood did not want to be involved and renounced her role as executor. She did not, however, disclaim her entitlements to the Launching Place property and residuary estate under the 1997 Will. Ms Bell applied to the court for a grant in respect of the 1997 Will.

Ms Barley, the executor under the informal Will, brought an application for a grant of probate of the informal Will.  

By the hearing date, the net value of the deceased’s estate was $413,288.

The court’s power to dispense with formal execution requirements

Section 9 of the Wills Act 1997 (Vic) allows the court to admit an informal Will to probate if it is satisfied that the deceased intended the document to be his or her Will.

Court refuses to admit informal Will to probate  

It was held that the informal Will described the deceased’s assets so imprecisely that it would be impractical for the executor to administer the estate. Justice Zammit found that the informal Will did not clearly identify the beneficiaries of the Will, noting that it refers to some beneficiaries by first name only. Justice Zammit declared that there was a lack of direction in the informal Will. For example, the informal Will refers, quite ambiguously, to giving “an extra half” to Ms Barley and her partner “for the kids”.

The court was not satisfied that the deceased intended the informal Will to be his final Will. Rather, the informal Will was a temporary document to deal with any adverse outcome from surgery. Justice Zammit held the deceased was aware of the requirements for a valid will and chose not to formally execute a Will encompassing his wishes as set out in the informal document. Accordingly, Ms Barley’s application for probate of the informal Will was dismissed. Justice Zammit upheld the 1997 Will, granting Ms Bell letters of administration with the Will annexed (a grant of representation to someone other than the executor appointed in the Will).

The deceased’s former partner, Ms Wood, inherited the Launching Place property and residuary estate, despite the fact that she already received a family law property settlement many years ago at the time of their divorce.

Ms Bell, the deceased’s de facto partner until his death, received nothing under the estate. Ms Bell will need to make a claim under Part IV of the Administration and Probate Act 1958 (Vic).

Take home lessons

There are significant risks associated with leaving an informal Will. Courts are reluctant to admit informal Wills to probate, especially in circumstances where a formal Will is in existence. It is imperative to review your Will as and when your family circumstances change (i.e. on marriage, separation, divorce and commencement of a new relationship).

If you have any questions in relation to your Will or any Estate Planning matter, contact our Wills & Estates team by email or by telephone +61 3 8540 0200.