NSW judge changes woman’s will to clarify legacy intentions

Published 27 Jun 2018

Writing a will is the best way to ensure that your final wishes for your estate are carried out appropriately. But did you know that a will may not be as ironclad as you think? In fact, NSW laws allow a judge to change a will under certain circumstances – even if you’re still alive.

This situation recently played out in the NSW Supreme Court when a woman asked a judge to authorise the amendment of her mother’s will to clarify a confusing clause. She was ultimately successful. So why is this allowed?

Ambiguous wording leads to confusion

The woman who pursued the case was one of three siblings. Their mother is currently 93 years old, lives in a nursing home and requires around-the-clock care.

She also lacks the mental faculties to organise her own estate planning, which means she is unable to make changes to her will or resolve any inheritance issues. Before becoming impaired, she wrote a will in 2012, as well as two codicils updating her will in 2013 and 2014, respectively.

Her intentions were to split her $26 million fortune equally between her three children, with all of them receiving a valuable piece of real estate. However, an ambiguous clause in the second codicil meant that a proportion of the daughter’s legacy could be worth either $7.8 million or half that amount – a sizeable difference.

Asking the courts for clarification

Under the Succession Act 2006, the courts can authorise for a will to be made, altered or revoked on behalf of someone who lacks the testamentary capacity to handle their own affairs.

To make this decision, a judge must be satisfied that:

  1. The individual is incapable of making or amending their own will.
  2. The changes still reflect the individual’s intentions for their estate.
  3. Making the changes is appropriate.
  4. The individual requesting the court’s authorisation is an appropriate person.
  5. All parties that an order may affect are given ample opportunity to represent themselves.

While there was some friction between the sister and her two brothers, they largely agreed their mother had intended for her daughter to receive $7.8 million, rather than a smaller amount. As such, the judge authorised the alteration of the codicil.

In this case, matters were brought to a satisfactory conclusion without a major inheritance dispute arising. However, ambiguous wording within a will can often lead to family provision claims.

If you believe you have been unfairly disinherited, please contact Gerard Malouf & Partners Will Dispute Lawyers today to learn more about our no-win, no-fee service.

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