Court rules against informal will

Date: Dec 17, 2014

Estate disputes can often result from informal wills, as discrepancies arise between the recognised document an individual prepares as their last will and testament and subsequent documents that have not been properly authorised.

This issue arose in a recent case before the NSW Supreme Court. In that case, the wife of a man who held property in both NSW and the US contested the legitimacy of a second informal will which favoured their son. In a counter-claim, the son sought a grant of probate for the more recent document.

The man's original will dated from 1983 appointed his wife as both executrix of the estate and the sole beneficiary, provided she outlived him by more than a month.

Many years later the informal will was written, dating from 2007. This document instead names the pair's son as the sole beneficiary of the will, as well as revoking any previous testamentary dispositions - a standard feature of a new will.

This second version was based on an unsigned version of the initial will, with handwritten adjustments to certain clauses of the original from 1983. There were no witnesses, although all of the pages had been signed by the deceased.

In this case, the Judge was required to determine whether the 2007 document was actually intended to be the final version of the man's will and, if so, whether it should be admitted to probate. 

One of the main factors considered by the Judge was why the second version of the will had not been signed by another person, given the deceased presumably understood the requirement to have a will witnessed.

The Judge also considered the financial situation of both the man's wife and his son and the deceased's intention towards providing for both of them.

In the end, the court ruled that the first will should be admitted to probate. The lack of witnesses and the lack of evidence to support the more recent will led the Judge to conclude that the document from 1983 should be used to distribute the deceased's estate.

In ruling in favour of the plaintiff wife, the Judge also dismissed the counter-claim made by the son to have the second will admitted to probate.

For other people thinking about rewriting a will, this case highlights the importance of having a will written up by a wills and estates lawyer. It also reveals just how important it is that those looking to contest a will be able to provide evidence an informal will did in fact reflect the deceased's wishes.