Australia: The easy way to ensure your assets are distributed according to your wishes – A case study

It is important that your Will complies with the legal requirements, ensuring that it is fair and valid. This is the easiest way to ensure that your assets are distributed according to your wishes.

Legal proceedings to settle disputes caused by an unfair or invalid Will make an already difficult time for families even more stressful and may be at an expense that the estate cannot afford.

BACKGROUND

'Mrs A' passed away in a Sunshine Coast nursing home at 90 years of age in 2012. She had divorced from her husband in 1971, and had her previous Will revoked. 'Mrs A' was survived by her 2 children, 'B' and 'C'.

At the time of 'Mrs A's' death, it was believed that there was no will. 'B' applied for and was granted Letters of Administration on Intestacy.

'B' later found a handwritten document in 'Mrs A's' personal documents which stated that she intended to leave her house in Birtinya and all of her chattels to 'B' and nothing to 'C'.

'B' applied to the Court to have the document pronounced as the Will. The application to admit the document to Probate was denied and was declared to be a document "for the purpose of making the will rather than the will itself".

CONFLICT

The document written by Mrs A stated that it was for the purpose of making her Will. She used common terms such as 'bequeath' and 'being in sound mind' indicating that she understood that creating the document was important and had significant consequences.

The document set out the reasons why she had not provided for 'C' in her will, as would be expected when making her Will.

'Mrs A' signed the document and put it in an envelope marked "THE ENVELOPE CONTAINS THE WILL OF" and put into a box together with her birth certificate, the title document to her house, bank details and other documents of a personal nature.

OUTCOME

The Court of Appeal decided that the written document left by 'Mrs A' established her intentions to create a new Will and was not intended to form her last Will. As a result, 'Mrs A's' estate was distributed according to the Succession Act 1981 (Qld) and not as she had intended.

MORAL OF THE STORY

See a qualified solicitor to ensure that, on your death, your assets go to who you want them to go to and not distributed according to a formula in an Act of Parliament.