Aug 142017
 

A will prepared without legal advice may not express the deceased's intentions. There are many cases looking at ‘homemade’ or ‘DIY’ wills.

In one case, the Courts had to interpret a homemade will for an estate with a gross value of about $3.6 million. The deceased had died in 2006, aged 83. He had seven children, then aged between 34 and 57. He had made at least 13 wills between 1987 and 2004, the last three in 1999, 2002 and 2004. The will of 2004 was typed by a business centre which offered word processing, typing and secretarial services. The document was signed in the presence of people employed in the business centre, who also witnessed it.

In February 2006, the man had again attended the business centre to have some handwritten changes he had made to the 2004 will incorporated into a new document. This new will, typed in February 2006, was said to be his last will and testament.

However, the will had not been checked by a lawyer and when, after the man's death, his executors came to carry out the terms of the document, a dispute arose about which of the beneficiaries would get income from the estate and which would get the capital. The matter went to court.

The judge found that the fact that the deceased had written his last will at the offices of the business centre and had told his doctor that he was aware of what he was doing did not mean that he actually appreciated what he was doing. By deleting one of the clauses of the previous will, the judge said the man had deleted "the critical clause disposing of the capital of the estate." The judge decided there was clear proof that the deceased did not understand the effect of the deletion, and that the deceased’s previously expressed intention that capital be distributed in the same proportions as income should prevail.

A similar situation arose in the recent case of Re Sanders, where the Court was not satisfied that an informal document met the requisite evidentiary standard to be the intended will of the deceased. The Court must be satisfied that the deceased intended, without any alteration or reservation, that the informal document should have the effect of their will.

In this case, the informal will was not prepared by a solicitor, which was significant because the diseased had a long history of engaging solicitors to prepare her wills and there was a lack of evidence surrounding the creation of the DYI will. Her estate planning documents were also always left with her solicitors for safekeeping, which did not happen with the DYI will. Moreover, the Court rejected evidence given by the deceased’s doctor about her testamentary capacity. It was found that the Doctor ‘made indirect inferences  [about testamentary capacity]  in his notes without any factual basis.’

These cases demonstrate the importance of receiving appropriate legal advice when making a will. To avoid the risk of creating a will that does not carry out your wishes, seek professional legal advice from Peter McNamara today.

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