In a recent case in the Supreme Court of South Australia,[i] applicants commenced proceedings seeking that an informal will of a deceased person be admitted to probate and that letters of administration with the will annexed be granted to them.
Letters of administration
Letters of administration with the will annexed was the form of grant sought (as opposed to a grant of probate, for example) because the will was incomplete. It did not name an executor, being the person responsible for doing what the will said and administering the estate.
The reason the applicants had to initiate proceedings in the Court was because they wanted to prove a document that was not executed in accordance with legal requirements. It was a handwritten letter commencing with “Dear Sir” and declaring that the applicants “and ABSOLUTELY NO ONE ELSE” were to be the sole beneficiaries of his estate. (Emphasis in original.) Significantly, it was not witnessed.
The applicants were neighbours of the deceased and said that they came to know him very well. They said they provided him with much assistance in his later years and were named as his next of kin at the hospital.
The deceased was not married, and had no partner or children. The deceased did have some cousins, and were therefore required to be notified about the application.
There was an earlier document from 2014, which was also handwritten and signed, addressed to whom it may concern, and sought to name a different person as the sole beneficiary of his estate. This person consented to the application.
If the deceased had died intestate (ie. without a valid will), then the deceased’s cousins would be entitled to inherit. It took many letters and phone calls, as well as an adjourned Court hearing, to make sure the cousins were adequately informed about the proceedings and the importance of obtaining legal advice.
Eventually, the Court was satisfied that the cousins had been notified of the application and had been given “ample opportunity to obtain legal advice regarding the validity of the document and to file an appearance” in the proceedings.[ii]
In the end, the Court was satisfied that the document was written, signed and dated by the deceased, that it clearly expressed his testamentary intentions and that he intended it to be his will. The Court granted permission for the applicants to apply for letters of administration with the will annexed.
The applicants obtained the result they sought, but unfortunately it would have taken them substantial time, money and no doubt stress to get there. Had the deceased simply instructed a wills lawyer to prepare a professionally drafted will that complied with the legal requirements, then the applicants would not have had to make this application.
Trying to make your own will to save costs or keep things simple is a bad idea. Seek professional advice. Contact us on 08 8213 1000.
[i] In the Estate of Drummond (Deceased) [2019] SASC 74
[ii] Ibid, Bampton J at [20]
