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Home | Blog | That seems a bit nasty

So you’ve discovered that a will of someone who recently passed away has some rather unpleasant comments in it. Perhaps the will describes someone harshly or contains offensive language.

When a will contains offensive words about a person

When a will is proved in Court it becomes a public document for all to see. If the will contains words which could be described as scandalous, offensive, defamatory or blasphemous you might be able to have them removed from that public document.

In a recent case in South Australia,[i] an application was made to the court to have words from a will which stated that the deceased considered her daughter to be a ‘compulsive liar’ and whose ‘lies have hurt [the deceased] severely over the years’.

Offensive? The Court said yes, but this was only part of the consideration.

For words to be omitted, they must not have any dispositive effect or testamentary purpose. This means they must not be words that give or distribute the deceased’s estate or have any other will-like purpose.

Secondly, they must be capable of being described as scandalous, offensive, defamatory or blasphemous.

If these two boxes are ticked, then the Court has power to omit those words. It does not mean that the Court will, but it can.

So what else is required?

Before we look any further, it must be noted that a will ought to proved in the words of the will itself. But this does not mean that the person making the will, the “testator”, has an unqualified right to use his or her will as a vehicle for defamation. If they do, the Court has the power to step in and prevent the Court’s processes from being abused and the will from hurting others.

In the case discussed above, the Court held that the words had no dispositive effect, that is, they did not dispose of her estate, but they did have a testamentary purpose. The testamentary purpose was that those words explained why the deceased did not make any provision in her will for her daughter.

Although this case was unsuccessful in having words omitted, each case will have its own circumstances and, therefore, its own results. If you are concerned about words in a will, you should speak with one of Wills and Estates lawyers for advice.

[i] Estate of Betty Joan Hoffman (Deceased) [2016] SASC 110

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