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Stepchildren fight to validate informal will

When is a will not a will?

This may sound like a riddle, but the Succession Act 2006 has strict requirements for executing a will, otherwise a document can be ruled as invalid.

These requirements include that the testator signs the will in front of two witnesses, who must also sign it.

Despite this, the Act provides courts with the power to dispense with the usual restrictions if plaintiffs can convince a judge that a document was intended to be the testamentary wishes of the deceased.

A recent case that went before the NSW Supreme Court highlighted how these principles work in practice.

Is a deathbed will valid?

The case involved a man who died in 2015 without updating his will.

A previous will he wrote was invalidated when he married his wife, although she predeceased him in 2011.

The man had two stepchildren, but no other family members apart from cousins. Under intestacy rules, the cousins would receive a share of the estate, while the man’s stepchildren would not automatically be considered eligible.

However, while the man was dying in hospital, he asked his stepdaughter to write out his final wishes. The resulting notes outlined his desire to split his estate equally between the two stepchildren, as well as provide gifts for other beneficiaries.

But without a signature and witnesses, the will didn’t meet the requirements of a valid will in the Succession Act. Nevertheless, the stepchildren pursued an inheritance dispute to have the will confirmed as the deceased’s final testamentary instructions.

Outcome of the inheritance dispute

Chief Judge in Equity Julie Ward ruled that the deathbed notes did constitute the deceased’s testamentary intentions, with the administration of the estate falling to the plaintiffs.

When justifying her decision, Chief Judge Ward said the deceased was aware that he was in a serious condition and had failed to update his will. He had also indicated his desire to put his affairs in order before passing away.

The stepdaughter was also described as an extraordinarily honest witness, which strengthened the plaintiffs’ case that the written notes, which were in her handwriting, were made according to the deceased’s direct instructions.

As such, the judge ruled that the administration of the estate, which largely comprised of a family farm, be granted to the plaintiffs.

Would you like to contest a will in NSW? Please contact experienced inheritance dispute lawyers today for more information on how to proceed with a claim.

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Contesting Wills
 — Gerard Malouf & Partners

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