Homemade
Wills can be very costly to your loved ones and may result in your wishes and
directions not being followed. Increasingly, we are seeing applications to the Court in
relation to Wills that do not comply with the necessary requirements to be a
valid Will [known as an informal Will].
In that decision, the
Queensland Court of Appeal determined that an informal document which stated “…
for the purpose of making the Will of Nora Priscilla Lindsay” was not a valid
Will.
As a result, the Will could not
take effect and the Nora Lindsay’s wishes in the document could not be carried
out.
In this case, Nora Pricilla Lindsay had two children, her son, Geoffrey Lindsay and
her daughter, Heather McGrath.
Nora decided to make a document
herself which looked very much like a Will leaving the bulk of her estate to
her son, Geoffrey. She specifically provided for why her daughter, Heather
should not receive anything from her estate and provided the reasons why she
was disinheriting her.
Nora Pricilla Lindsay died on
16 October 2012 and two court cases later, the Court held that the document was
not a Will.
At first instance, the primary judge found that whilst
the handwritten document contained a bequest of Nora’s property to her son, Geoffrey, that statement in itself was insufficient to satisfy
the requirements of a valid Will. The
primary judge formed the view that the document was to be "for the purpose
of making the Will" rather than the Will itself.
The issues with the document were highlighted as follows:
- First, the document contained the words "for the purpose of making her Will";
- The handwritten document did not accord with Nora's conversation that she had with her son Geoffrey in 2008 that she was leaving "everything" to him. There were specific exceptions attached to the document but they had been torn off from the document;
- There were alterations contained in the document;
- The document did not deal with all of Nora's estate;
- Nora wrote her name but was not in the form of a signature; and
- The document was not witnessed.
On Appeal, the court found that the evidence placed before the primary
judge, at best, established that it was Nora’s intention that her son, Geoffrey receive the
benefit of her estate with her daughter Heather to receive nothing. However,
the evidence did not establish, that the handwritten document, in that form,
was intended by Nora to form her last Will. The Appeal was
dismissed.
As Nora had revoked
her previous Will, her children shared equally in her estate pursuant to the
laws of intestacy.
Although preparing
an informal Will might sound like a cost effective way to prepare your Will,
there is no guarantee the document will be valid. Making an application to the
court to validate a will which does not comply with formal legislative
requirements is very costly and far exceeds the costs of having a Will prepared
in accordance with the legislative requirements.
