Another reason not to make a DIY Will
If you needed another reason to not use or make a DIY Will..Here it is..
The Queensland Supreme Court in Re the Will of Fernando Masci [2014] QSC 281 recently had to decipher a DIY Will made by a husband and Wife. One of the Executors asked for the Court to determine whether the will could be admitted to probate (doubt being raised by its being so uncertain); whether the joint will was a mutual Will; whether or not the Will severed the joint tenancy in which Mr Fernando and Mrs Elizabeth Masci held their home; what the words “all monies” in the Will meant, and for one of the Executors to be removed as an executor.
The other Executor brought a cross application and asked for both executors to be removed and for a solicitor to be appointed in the executors place as administrator of the estate.
The facts:
Mr Fernando Masci died on 7 February 2012 and was survived by his second wife Mrs Elizabeth Masci. Fernando and Elizabeth had both been previously married and had children from their previous relationships. Fernando had three children from his first marriage and Elizabeth had one child from her first marriage. There were no children as a result of their marriage. Fernando and Elizabeth prepared a joint Will on a pre-printed form and executed the Will themselves on 2 April 2006.
There was no suggestion that the Will had not been executed in accordance with the requirements of section 10 of the Succession Act (QLD). The Will appointed Fernando’s son, Graham and Elizabeth’s daughter, Susan as their executor. Unfortunately there was evidence that the two could not co-operate as executors. Graham sought to have Susan removed as Executor and Susan sought to have the removal of both executors and the appointment of an independent administrator such as a solicitor.
The Queensland Supreme Court was also asked to decipher the following clause in the DIY Will”
“I give Fernando Masci my husband is to stay in the house above and to handle all monies until his demise. (death) Elizabeth Masci is to stay in the house above and handle all monies if Fernando Masci is deceased before her. On the death of both Mrs Susan Camm of… and Graham Silvano Masci of… are to sell all possessions and 50% is to go to Mrs Susan Camm and 50% to Diane Collins, daughter of Fernando Masci, Ricky Fernando Masci son of Fernando Masci and Graham Silvano Masci son of Fernando Masci. This is to be reversed if either is deceased first.”
The Result:
Justice Dalton determined that by reading the Will as a whole, the Will could be constructed to sensibly give effect to the Will, therefore his honour ordered that the Will be admitted to Probate.
His honour having regards to the family circumstances of both Mr and Mrs Masci at the time they made the Will and the provisions of the Will made the following declarations:
- that the joint Will was a mutual Will and that the joint tenancy in which Mr and Mrs Masci held the property in Merrimac Queensland was severed, at least from the death of Fernando Masci.
- that the joint will of Fernando and Elizabeth Masci operated to give Elizabeth Masci a life estate in the land situated at Merrimac Queensland, and all the monies of Mr Fernando Masci whether held in his own name or jointly with her
Further his honour decided that Fernando’s child should act as sole executor of the estate, otherwise the administration of the estate would be prevented, because of the inability of the two executors to co-operate.
Importance of a proper legal advice
This case emphasizes the importance of obtaining appropriate legal advice in relation to your estate planning. Significant legal fees could have been avoided if Mr and Mrs Masci had consulted with a Wills and Estates Solicitor in relation to their estate planning.
