Question of Will validity causes estate legal battle

Published 21 Dec 2018

In a recent case before the Supreme Court of New South Wales, questions arose about whether an informal, unsigned Will superseded and revoked a previous Will.

Sections 8 and 11 of the Succession Act 2006 govern how courts should decide whether or not a Will was meant to be revoked by the testator. If the court isn’t satisfied that the deceased had the clear intention of revoking or altering the Will, then it still stands for estate distribution.

The main conflict

A deceased man had created a Will in 2015. Since then, he had worked on another document with a solicitor, but it was unexecuted when he died. If this informal Will were to act as the final version under the Succession Act 2006, then the 2015 document would be revoked. The new Will also included a revocation clause, which is a statement that any previous Will made by the signatory is no longer in effect.

The key question is whether the man died intestate or testate.

The first defendant is a children’s hospital network, who says that the first Will was revoked by the informal Will, which is said to have been made in early 2016. The second defendant, who is a former wife of the deceased, alleges that the deceased died intestate.

If this were found to be true, the estate would pass to the State of New South Wales, unless the former wife could prove that she was in a de facto relationship with the deceased in the two years leading up to his death. She would then be entitled to the entire estate.

The plaintiff believes that the 2015 Will is still in effect and that the deceased died testate. The plaintiff is the former partner of the second defendant’s son, who she had a daughter with. The plaintiff was the sole beneficiary mentioned in the 2015 Will.

It was noted in the court documents that the deceased had worked with the same law firm on many different Wills for 50 years.

The decision

The judge found that the deceased had no intention to revoke his 2015 Will, whether or not he was in the midst of creating a new one. The order was made for the original Will to enter probate in favour of the plaintiff.

If you’re thinking of contesting a Will in NSW, our attorneys can offer you a free consultation and provide services on a no win, no fee basis. Contact us right away at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.

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