NSW Supreme Court looks closely at ‘intentions of deceased’
Published 28 Jan 2014
A will is the most surefire way to ensure your estate is properly divided up between the people who you believe are entitled to it.
However, in certain cases the New South Wales Supreme Court will review cases in which a person’s will is left through an informal testamentary document.
In these instances, it is up to the court to make a decision based on a number of factors, including whether the document purports the state of the testamentary intentions of the deceased, if the deceased knew what was required to create a formal will and several others.
In the case, plaintiff Robert Angius argued that although a properly executed will had been made on April 27, 2007, there was an alternative document, referred to as the “undated document”, that made further provisions. This document was written inside a part of a book and brought to authorities by Mr Angius.
In-depth review of the undated document showed that the handwriting was certainly that of the deceased, and it was even written with the same pen that was used to write the official will. However, there is no signature of the deceased anywhere on the document, or that of anyone else.
Assessing the validity of the undated document
While there is no revocation clause in the undated document, there are several inconsistencies between the two that the court had to take into account. Also, the judge added that although there was no date on the alternative document, research showed it was most likely written shortly before the death of the deceased.
The ultimate question for the court was whether the undated document was a satisfactory last testament. The judge stated that the undated document shows “unmistakable signs” that the deceased believed she would be dead by the time the note was read.
The deceased viewed it as a document as important as the previously written official will, and she may not have understood what was required to create a satisfactory document.
“Accordingly, I am satisfied that, on the balance of probabilities, the undated document is a document, purporting to state the deceased’s testamentary intentions, which document has not been executed in accordance with Part 2.1 of the Act, and which the deceased intended to be her will,” the judge concluded.
Wills and estate cases can be extremely complex, making it important to get in touch with experienced contesting willslawyers when these issues arise.