When it is too late to make a Will

By Natalie Lewis, Lawyer

The recent Victorian Supreme Court case of Re Jones [2021] VSC 273 illustrates the costly ramifications of leaving it too late to make a Will. 

The deceased in this case died on 6 February 2019 survived by his two daughters Melanie and Ebony.  Under his Will, dated 5 November 2016, he appointed the ‘Victorian Government Solicitor’ to be his executor (which was taken to mean State Trustees) and left his Chevrolet and 90 per cent of his estate to Ebony, and the remaining 10 per cent to Melanie.    

State Trustees applied to the Supreme Court for a Grant of Probate in solemn form (as opposed to common form).  An application for a Grant in solemn form is typically made to protect an executor in circumstances where the validity of the Will is or may become impugned.   

In order to obtain a Grant in solemn form it must be shown that:

  1. The Will was validly executed (signed by the testator in the presence of two witnesses);
  2. The testator had capacity to make a Will (‘testamentary capacity’); and
  3. The Will was executed with the knowledge and approval of the testator

The facts of the case

The deceased suffered a major stroke in June 2016.  Whilst he was in hospital, Melanie visited him often, bringing him food to help him recover from his emaciated condition. She also paid for a ramp, rail, shower seat and wheelchair in preparation for his return home.  Further, she and her partner lived with and cared for the deceased when he returned home, only to be evicted when his ‘ex-partner’ moved in. Having nowhere to live and feeling a sense of betrayal, Melanie withdrew $10,000 from the deceased’s bank account.    

When the deceased’s brother Paul and his partner Meryl visited the deceased upon his return from hospital, they discussed making a Will for the deceased. 

During the first visit, the deceased is alleged to have indicated that he did not want to leave his estate equally to Melanie and Ebony but instead instructed ‘everything to Bon (Ebony)’.  He showed Paul his bank book, presumably referring to Melanie’s unauthorised transaction, and called Melanie a derogatory name.  When Paul reminded the deceased of Melanie’s expenditure around the house and explained that leaving her nothing could result in her making a claim against his estate, the deceased apparently wrote “$10,000” on a piece of paper and agreed to leave the rest of his estate plus ‘the Chev to Bon.’ 

When Paul and Meryl next visited the deceased, Paul suggested that it would be more appropriate to divide the estate into shares and went through various proposals in favour of Ebony, beginning with a 50/50 split, followed by a 60/40, 70/30, 80/20 and 90/10 split. The deceased is said to have rejected each proposal until Paul reached the 90/10 split to which the deceased said: ‘Yes Yes.’ 

Paul and Meryl then prepared two duplicate copy Wills when they returned to Queensland.  On returning to Melbourne in November 2016, they visited the deceased with a view to having the Wills executed. Paul gave the deceased one of the Wills to read and when he asked the deceased ‘is that what you want’ the deceased responded in the affirmative.  Paul then asked the deceased to read through both Wills and confirm that they were the same, which the deceased did. 

Other than having ‘screwed up his face’ at the legalese, Paul claimed that the deceased appeared to understand the Will, which took him no more than a couple of minutes to read. Paul and Meryl deposed that the deceased proceeded to sign both Wills in their presence as subscribing witnesses.

Despite prima facie evidence of a duly executed Will prepared on the basis of considered discussions with and instruction taken from the deceased, the Court found that the overall evidence displaced the presumption of due execution and supported a finding that: 

  • The Will had not been signed by the deceased. The Court accepted Melanie’s evidence that the signature in the Will looked more like the deceased’s pre-stroke and not his post-stroke signature. The Court also compared the signature in the Will with the deceased’s post-stroke handwriting, noting the marked differences caused by the damage from the stroke; and
  • The deceased lacked testamentary capacity and could not have known and approved the contents of the Will.   

Accordingly, the Court refused to Grant Probate of the Will in solemn form. 

Lack of testamentary capacity and knowledge and approval of the contents of the Will

Both Melanie and Paul agreed that since the deceased’s stroke, he struggled to communicate effectively which often caused him anger and frustration.  There was also evidence that in order to elicit responses from the deceased, one needed to ask simple, often leading questions, requiring a ‘yes’ or ‘no answer’.  Wills and Estates practitioners know too well that leading questions are an unreliable means of taking instructions and gauging testamentary capacity.    

Most critical, however, was the evidence of Dr Plitas, the neuropsychologist who assessed the deceased on 18 January 2017, just over 2 months after the Will was signed.  Dr Plitas opined that:

  • The deceased suffered a cognitive disability, most likely an acquired brain injury secondary to a stroke, which affected a number of his cognitive domains.
  • The deceased’s auditory attention span, working memory and information process speed were within the extremely low range.
  • Whilst the deceased was capable of answering simple contextual questions, he struggled significantly with non-contextual questions involving the presentation of more complex information and syntax (complex relations between ideas and actions). On this basis, she concluded that the deceased would have struggled to understand the main dispositive clause of the Will which contained the terms ‘discretion’, ‘disposition’, ‘residuary’ and ‘remainder’, terms that neither Paul nor Meryl explained to the deceased before he signed the Will.   

The Court held that in these circumstances it would simply not have been possible for the deceased to understand the terms of the Will.

 Further, given the level of support and care Melanie provided the deceased and the almost forgivable nature of her indiscretion, the Court could not exclude the possibility that the deceased’s decision to make almost no provision for her was evidence of a lack of testamentary capacity, in the sense that his cognitive impairment ‘perverted his sense of right’ in evaluating and discriminating between the natural claims upon his estate. 

 Lessons to be learned from this case

 The effect of the Court’s decision is that in the absence of a provable Will, the deceased’s estate will need to be administered and distributed in accordance with the rules of intestacy under Part IA of the Administration and Probate Act 1958. 

Presumably Melanie and Ebony will benefit in equal shares, however, it is not clear from the case whether the deceased’s former partner with whom he had an and off relationship may also be entitled to share in his estate. 

Further, given the cloud of doubt hanging over the deceased’s testamentary capacity, it is hard to know definitively how he would have wanted his estate distributed. 

Accordingly, the case demonstrates the importance of having a Will in place lest the chance to make one at a later date is lost because of incapacity caused by illness or injury.  Unless a person specifically desires to die intestate, it should not be left to chance than an intestacy will result in a fair outcome or one which is reflective of what the deceased would have wanted.  

Further, whilst the rules of intestacy set out the hierarchy of those entitled to administer and benefit from the estate and the duties and powers of an administrator, they do not address issues specific to the deceased’s circumstances which require professional advice.  In this case, it was evident that Paul attempted to help the deceased make a Will because of an apparently mutual concern that Ebony’s share of the estate would be controlled and squandered by her mother.  This is presumably why a government trustee was appointed as executor.  The control of a child’s inheritance in circumstances where the testator is no longer with that child’s parent is a common concern amongst potential testators and one which requires professional advice. 

Would a statutory will application have provided a better outcome?

 Where a person lacks capacity to make a Will, an interested person can apply to the Supreme Court for approval of a proposed Will.  The Court will only approve the proposed Will if satisfied, inter alia, that it ‘reflects what the intentions of the person might reasonably be expected to be.’ 

However, in a case like the present where there is no evidence of any previous Will and it is difficult to ascertain what the deceased’s intentions really were, the Court would have no yardstick against which to determine whether the proposed Will is consistent with what the deceased would have wanted.    

Moreover, in cases where the person never made a Will, the Court will not apply the presumption against an intestacy.  The end result being the Court is likely to reject the proposed Will, with the costs of the application most likely coming out of the estate, as was the case here. 

If you have any questions about this article or about your estate planning, please feel free to contact one of our LIV accredited Wills and Estates specialists on (03) 8540-0200 or at wills-estates@mst.com.au.