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The Harsh Consequences of Failing to Finalise a Will

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By Deborah Kliger, Law Graduate, MST Lawyers

In the recent Supreme Court case Robinson v Jones [2015] VSC 222 Justice McMillan refused an application for probate of an informal will. “Probate” is a legal document which certifies the will as valid and enables the executor to administer the estate.  This decision highlights the importance of seeking legal advice to ensure your will is properly drafted and executed.

The previous signed will: 

The deceased left a signed will dated 26 June 2012. The deceased’s lawyers Mr Robinson and Mr Raleigh were named as executors of the $13 million estate. The will left 20 per cent of the residue of the estate to the deceased’s then partner Ms Jones.

The deceased suffered from a chronic depressive disorder, alcoholism and suicidal tendencies. The relationship between the deceased and Ms Jones became increasingly tumultuous. In February 2013 Ms Jones decided to separate from the deceased.  

The unsigned draft will (“the informal will”):

Following the relationship breakdown the deceased instructed his lawyer to remove the gift to Ms Jones from his will. The deceased directed his lawyer to amend the will to gift the sum of $500,000 from the 20 per cent share to Ms Jones’ son-in-law. The deceased wished to leave the balance of the 20 per cent share to the Victorian Animal Aid Trust. Once again the deceased appointed Mr Robinson and Mr Raleigh as executors of his estate.

On 27 February 2013 Mr Robinson sent the deceased a letter enclosing the draft will. The letter noted that once the will was in order an appointment would be made for signing. Mr Robinson alleged that the deceased verbally approved the will stating that ‘the draft was in the form he wanted’. However, the draft will was not signed by the deceased. On 8 March 2013 the deceased died by suicide.     

The application for probate of the informal will:

Mr Robinson and Mr Raleigh applied for a grant of probate of the informal will under section 9 of the Wills Act 1997 (“the Act”). Failing that, they sought probate of the June 2012 will.

Under section 9 of the Act the court may grant probate of a will that does not meet the formal requirements (i.e. execution) if it is satisfied that the deceased intended the document to be his or her will.

Supreme Court takes a hard line on informal wills:

The deceased validly executed his 2012 will. Accordingly, the court found he would have known the will had to be signed and witnessed to be valid. There was no evidence that the deceased intended to sign the revised will. The deceased had an opportunity to sign the will in final form however he failed to do so. Further, the deceased’s suicide note made no reference to the informal will or any changes to the June 2012 will.  

The court concluded that the deceased was a person who talked about making new wills but didn’t finalise them. The court was not satisfied that the deceased intended the informal document to be his last will. As a result, the application for probate of the informal document was refused. 

The court is reluctant to grant probate of an informal will, especially when the deceased has previously made a valid will. The decision reinforces the importance of seeking legal assistance to ensure your will is properly drafted and executed. Proving an informal will is an uncertain and expensive exercise.

For further information, please contact our Wills & Estates team by email wills-estates@mst.com.au or by telephone +613 8540 0200.