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THE IMPORTANCE OF A CURRENT WILL

Thu, 20 Jun 2019

THE IMPORTANCE OF A CURRENT WILL

A recent decision of the Supreme Court of Queensland has highlighted the importance of firstly, having a valid will, and secondly, understanding the correct way to have your will updated if you change your mind about the contents of your will, including changes to any beneficiaries.

THE CASE

In this case, a gentleman ‘Mr M’ made a will in 1994 appointing his daughter as executor and apart from a small bequest to his parents, his daughter was the entire beneficiary of his will.  This will was made with a solicitor, however Mr M kept the original will in his possession.

Almost a decade later in 2013, Mr M had a falling out with his daughter, and attended on the Public Trustee of Queensland to have a new will drafted appointing the Public Trustee as the executor, and the RSPCA as the beneficiary of the estate (aside from two minor specified requests).  The new will was subsequently drafted, signed, and held by the Public Trustee on his behalf.

The relationship between Mr M and his daughter improved considerably from 2014 onward. In 2016 he attended at the Public Trustee and collected the original will that he made in 2013.

In 2018, Mr M was diagnosed with lung cancer, and despite treatment, his condition was deteriorating rapidly, requiring him to be admitted as an inpatient to hospital.  Prior to going into hospital, he gave a note to his next door neighbour to ask him to let his daughter know if he did not come out of hospital, and also words to the effect that his daughter would find his will (to her) and other items in the property.

During his time in hospital, Mr M’s daughter visited him and they had several discussions wherein he told her that he had made a will in 2013 when he was angry at her and that he had ‘picked that will up so that there was no confusion in the future’ and that his ‘1994 will was what he wanted for his last wishes’.  He also told her that he intended to leave everything to her, and had also made comments to the same effect to others.

After these discussions, his daughter located the 1994 will in his filing cabinet in a file marked ‘Wills’, and notably, the 2013 will was not contained in that folder. Upon taking the 1994 will in to Mr M in hospital, and asking if he wanted to re-do the will as his parents were now deceased, Mr M replied ‘no’ and that he was okay with how it was.  He also confirmed at that time that the document was his ‘current will’.

Mr M died 10 days later.

ISSUES

Unfortunately for Mr M and his daughter, Mr M was operating under the mistaken belief that if he destroyed the 2013 will, then the 1994 will would become his current will.

The Succession Act 1981 (Qld) governs wills and succession matters in Queensland, and section 13 of the Act specifies various ways in which a will can be revoked, and these include ‘revocation by means of a later will, or by a document declaring an intention to revoke the will, or by the testator destroying the will with an intention to revoke it, or writing on the will or otherwise dealing with it in a way which satisfies the Court that the testator intended to revoke it’.

In this case, the Court found that Mr M had in fact effectively revoked his 1994 will when he executed his later will in 2013. 

The mere statements that he made that he intended for his 1994 will to be his ‘current will’ were not enough to satisfy the court that he intended to revive the revoked will and because his 2013 will could not be found, it was held that he had died ‘intestate’ or without a will.

The administration of an intestate estate follows Parts 1 and 2 of Schedule 2 of the Succession Act, and because Mr M left no surviving spouse, the estate would be distributed equally between his two children, his daughter, and a son he had from an earlier marriage (even though Mr M had no relationship with him due to irreparable differences).

So, in this case at least, Mr M’s daughter will still likely receive 50% of Mr M’s estate despite Mr M’s failure to have a current will at the time of his death.  However, it is important to be aware that the situation may have been radically different if Mr M had a spouse or other children who were alive at the time of his death, and his daughter may have ended up receiving only a small amount, which appears to be contrary to his intentions.

Nevertheless, Mr M’s oversight in relation to the will means that instead of 100% of his estate (subject to any rights Mr M’s son may have had under family provision legislation) going to his daughter, she is likely only going to receive 50%.

This case again highlights the importance of having a current, valid will in place which accurately records your wishes and in the event that your wishes change, that you obtain professional advice in relation to drafting a new will.

Our Gold Coast based wills & estates team have lawyers who are experienced in this area of law, and can guide you through the process to ensure that your will is current, and reflects your wishes upon your passing.

To discuss your  individual estate planning needs or if you require assistance in the administration of an Estate, please do not hesitate to contact our Gold Coast team on (07) 5563 8970 or email us at admin@affinitylawyers.com.au.

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