Supreme Court agrees handwritten note is last will of dead farmer

Published 14 Nov 2014

The niece of a deceased farmer has won an inheritance dispute in which she claimed a handwritten note should overrule his existing will.

Under the Succession Act 2006, for a will to be valid the document needs to be signed and witnessed by at least two individuals.

However, according to NSW Supreme Court documents, this was not the case with the farmer’s note, which was discovered in a black bag owned by the deceased shortly after his death.

The bag also contained a previous copy of the decedent’s formal will, which was written in 1989. The older document left his entire $2.7 million estate to his only daughter.

Should his daughter die before him, which occurred in 2006, he wanted the estate to be split equally between one nephew and four nieces.

Contesting the will

The plaintiff, another niece, claimed that the deceased discussed making a new will with her and her mother in 2011. She said her uncle wanted to update the document following the death of his daughter and give her half of the estate.

A year later, the farmer began to experience renal failure, leading to a significant decline in his overall health. The 76-year-old’s sister, the plaintiff’s mother, asked him whether he had his affairs in order.

The deceased asked for his estate to be split 50-50 between his brother and the niece. According to the plaintiff and her mother, he asked for them to fetch his black bag and a will kit, so that he could put this in writing.

He is also alleged to have declined the services of a solicitor. Unfortunately, the deceased was taken to hospital later that day and died before the will could be changed.

The bag contained the unsigned note, which outlined how he wanted his estate to be shared between his brother and niece.

While the farmer’s nephew, and executor to the will, disagreed that the document was the deceased’s last intentions, the courts ruled in favour of the plaintiff.

Writing a will in NSW

This case underlines the importance of regularly updating a will when life-changing events occur that could affect how your estate is divided upon your death.

The verdict also shows that while the Succession Act requires a will to be signed and witnessed to be considered, there are circumstances where judges overrule these conditions.

If you are thinking about contesting a will, please contact an expert lawyer to see whether or not you are likely to be successful.

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