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Home | Blog | Which will? And which will not?

A man died leaving two documents that discussed his wishes and intentions for what should occur after his death.[i]

The first document

The first document was a homemade will kit, completed by the deceased and signed by him in the presence of his two neighbours and his sister-in-law. The two neighbours also signed the document as witnesses in the deceased’s presence.

The document listed a number of specific gifts, including his home, boat and motor vehicles, but unfortunately did not name a recipient (a beneficiary) to those gifts. The rest of his assets were left for the sister-in-law.

Later that day, the deceased told his sister-in-law that he had left everything to her.

The second document

Five days later, the sister-in-law received in the mail a letter handwritten by the deceased. It was not dated, but included the deceased’s address at the top and his full name and signature at the end. It was not witnessed. The letter came with some bankcards and keys to the deceased’s house. That same afternoon, the man was found dead in his home.

The Court was satisfied that the letter was written by the deceased and prepared after the first document. The letter talked about the deceased’s life, and included phrases such as “As you know already know I have left my house and all belongings to you in my Will” [sic] and expressed who the deceased wanted the sister-in-law to give particular items to.

The questions for the Court

  1. Should the first document be admitted to probate as a will; and
  2. Should the second document be admitted to probate as a codicil to his will.

The answers

The answer to the first question was simple. Although the document was incomplete in that it named no beneficiary to the specific gifts, it was executed in accordance with legal requirements. The Court therefore said that it was valid and should be admitted to probate as his will.

The answer to the second question required further consideration. It was not prepared in accordance with legal requirements. However, the law allows documents that are not prepared in accordance with these requirements to be deemed a will or codicil in certain circumstances.

To be deemed a will where not all of the legal requirements are followed, the document must not only express testamentary intentions (intentions about what is to occur with assets upon death) and must be intended by the willmaker (testator) to be a will (or codicil).

The Court held that the second document could not be admitted to probate as a codicil as it could not be satisfied that the deceased intended the letter to be his will or codicil. The deceased knew of the formalities required to make a will (which he had done with the fist document), yet had not done so with the second document.

The Court was also not satisfied that the will expressed testamentary intentions. It was written in way that expresses wishes or suggestions rather than binding directions.

Take home point

If you want to make a will, seek legal advice. If you want to change a will, seek legal advice. Errors cost your estate and your family, and might result in your wishes and intentions not being followed.

[i] In the Estate of David Wayne Brown (Deceased) between Yiwen Qin and Julie Spear as Guardian for Thalia Jade Spear [2016] SASC 199

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