NSW Supreme Court accepts amended will as valid

Published 18 Mar 2016

Writing a will is an important element of estate planning because it allows people to clearly outline how they would like to distribute their assets among loved ones upon their death. The testator must usually sign the will and have two people witness the event – as well as sign it themselves – to ensure the document’s validity.

However, on some occasions, judges may decide that a will should be considered valid even when the official requirements aren’t met. These circumstances occurred in a recent case heard before the NSW Supreme Court in which the executors of a man’s estate requested that an informally amended version of his will be confirmed as his final wishes.

The man died in July 2014 leaving an estate worth $943,949 that was divided among multiple beneficiaries in a September 2008 will. The deceased and two witnesses signed the document and it was kept in the home of his niece, a lawyer and executor.

Over the Easter period in 2014, the testator rang his niece to ask her to send him the will because he wanted to make amendments, which included removing several beneficiaries. His niece dropped off the will but her uncle died a short time later.

The original will was found with multiple amendments throughout, including the addition and removal of certain people, as well as adjustments to the amount of money left to existing beneficiaries.

Ruling on the will’s validity

The executors of the will – the man’s niece and brother – asked that the courts accept the amended document as the deceased’s last intentions for his estate.

One of the beneficiaries to the original will challenged this request, as the informal version would have meant she lost $2,000 inheritance. In addition to contesting the will, the defendant also filed a separate family provision claim in order to receive a larger proportion of the estate.

The judge was therefore required to rule on whether the amendments could be considered official under the Succession Act 2006. Section 11(1)(f) of the Act states that an existing will can be revoked if the testator writes on the will or otherwise makes changes that are intended to void the preceding document.

According to the judge, the deceased had made extensive revisions and, importantly, had signed each one with his initials. As such, the court ruled the will was valid and the grant of probate for the amended version could be completed.

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