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Home | Blog | Case Study – The risks of home-made Will kits

A recent case, In the Estate of Nicholls [2014] SASC 204, highlights the importance of seeking legal advice in making or altering your will. The law of wills is very detailed, and if a will is not made or altered in accordance with those laws, it becomes difficult, costly and time-consuming for your Will to be deemed valid – or worse, not valid at all.

Difficulties of a DIY will

In the case In the Estate of Nicholls, Mr Nicholls (‘the deceased’) died on 19 April 2014, leaving his three sons surviving. The net value of his estate was just over $408,000.

He had made his will in 1999, using a will kit, in which he had named his son Mark as his executor. The will had both typed and handwritten text, and appeared to be complete, despite there being two pages of the will kit missing – either torn or cut out.

A small section of the will had also been removed and replaced with white paper attached by tape. Upon the white paper were the words ‘ Section removed by P Nicholls – 7th August 2012.’ the text ‘100%’, the deceased’s signature, and his initials.

The deceased signed his will, and had two witnesses also sign it. One of witnesses could not be identified by the deceased’s family and the other was now suffering from advanced dementia and so could not provide any information regarding the will.

The Court was required to consider the following questions:

  1. Was the will revoked (cancelled) because of the section of the will that had been torn or cut out?
  2. Were the alterations to the will done in accordance with requirements by law?

In determining the answer to the first question, the Court referred to a section of the Wills Act 1936 which states that a will can be revoked by ‘burning, tearing or otherwise destroying the will … or part of the will’ by the testator (will-maker) with the intention of revoking it. The deceased’s will, because of the damage to it, created a presumption that he intended to revoke it.

The Court noted many factors that weighed against this presumption. These included:

  1. The deceased told his son he had a valid Will;
  2. The words ‘Section removed by P Nicholls – 7th August 2012’ suggested that the deceased intended for the section torn or cut out not to apply;
  3. Two photocopies of the Will which were located with the original will also had the same part torn or cut out.

In determining the answer to the second question, again the Court referred to the Wills Act 1936. The relevant sections of the Act were section 8 which listed the requirements to execute a valid Will, and section 24 which stated that no alterations made after a will was executed would have effect ‘unless the alteration is executed in the manner in which a will is required to be executed by this Act’.

The alterations and text on the attached white paper were not witnessed and were therefore not made in accordance with the requirements of either sections 8 or 24. The signatures that were on the will were made prior to the time the will was altered.

The Wills Act 1936, if particular conditions apply, will allow for informal wills, such as the deceased’s will, to be admitted to Probate or deemed as a valid will. For this to apply, the document must express ‘testamentary intentions’ and be intended by a deceased to constitute his or her will.

The Court noted that:

  1. The deceased’s son could locate no other will amongst the deceased’s possessions.
  2. If the will was held to be invalid, and the laws of intestacy (the laws saying what occurs if there is no valid will) were to apply, then the deceased’s three sons would inherit. Those three adult sons had consented to the Court application that the located will be admitted to probate to be held a valid will.

In the circumstances of the case and given the size of the estate, the Court held that the deceased’s will be admitted to probate as an informal will.

Although the deceased’s will was admitted to probate as an informal will, the process to get it there was not simple. Had the deceased sought legal advice from a Wills and Estates lawyer to prepare and amend his will, it would have been made and executed in accordance with the relevant laws, reducing the added stress, cost and hassle to his family.

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