When a client says to me that they would like to take their original will home for safekeeping rather than let me store it in our fire proof deed safe, I tell them this:
“By all means, it is your document, but before you do, let me give you my spiel”.
Protecting your will
And then I go on about the importance of protecting your will – not attaching any form of clip to it (paper clip, bull dog clip, pin or fastener), not removing or reapplying staples, not letting it get damaged or lost and not being tempted to make changes to it without taking the proper step of seeing a lawyer.
I read cases week after week (and in this week, day after day!) about wills being indented, damaged or written on, and about people attempting to make their own wills. The informal and lax approach people take towards such important life (and death) changing documents never fails to surprise me.
Take this case for example:[i]
Although the deceased in this instance, kept his original will in the safe custody of his lawyer he could not resist meddling with the copy he kept at his home.
- The deceased sought legal advice and made his will through a lawyer;
- The lawyer made sure the will was prepared, signed and witnessed in accordance with law;
- The original will was stored in the safe custody of the law firm; and
- The deceased was given a copy of his will for his records.
Things were looking peachy, until the man decided he did not like his will the way it was and wanted to make some changes.
Here’s the not-so-good part:
- Instead of going back to his lawyer, he decided he would do it himself, writing on the third page of the copy of his will and putting it in a tin box marked ‘Will and Important Paperwork’;
- The man died without the changes to his will being made in accordance with law.
Fortunately, the law is not so surprised by people doing this and allows for documents which very much look like a will but are not made in accordance with law to be deemed a valid will in certain circumstances.
In this case, the deceased’s will was signed by him, but not witnessed.
So the executors named in the will, the deceased’s son and a lawyer, had to make an application to the Court for the handwritten provisions on the deceased’s will to form part of his will.
The main question that the Court had to determine in this case was whether the deceased intended the document to be his will. It had to be more than a draft, or diary note and instead had to show that the deceased intended the document, including his handwritten provisions, to dispose of his estate and take effect upon his death.
The Court said yes; the alterations on the deceased’s will formed part of his will, but it was not without the time and expense of an application to the Supreme Court.
If you are tempted to amend your will yourself, please seek legal advice. Even if I have to give you my spiel.
[i] Re Buchanan  QSC 214