Lesley McDonnellMaking a valid Will is one of the most important things a person can do to protect their loved ones. Over time a Will needs to be reviewed and updated so that it properly reflects life changing events. A recent South Australian court case highlights what can happen when appropriate professional advice is not sought before changing a Will. The effect can be devastating if the gift fails which was the result in this case.

The deceased left a valid Will dated 21 January 1993. The deceased subsequently prepared a note by hand on 12 May 1994 which sought to make a change to the 1993 Will. The terms of the 1994 document provided “Michael may have the use of the house for as long as he needs it”. Unfortunately the 1994 note did not comply with the legal formalities required to change a Will for example there were not two witnesses present when the note was written out by hand by the deceased and signed. This resulted in the case having to go before a court to determine a proper construction of the 1994 handwritten note of the deceased. This in turn caused delay and inconvenience to the administration of the estate.

Notwithstanding that the 1994 handwritten note prepared by the deceased did not comply with the strict formalities prescribed by legislation, courts are empowered to dispense with the formal requirements of a Will if certain requirements are met.  In this case much turned on the 1994 document using uncertain language. “In the circumstances of this case, the expression ‘for as long as he needs it’ is, without more, entirely uncertain”. For example, how is Michael’s ‘need’ for the residence to be determined, by an independent arbitrator or by Michael himself? Is regard to be had to Michael’s financial situation and are emotional factors, such as sentimentality, to be considered also? The Judge emphasised that a reasonable beneficiary would require answers to these kinds of questions since the ultimate realisation of their bequest depends upon their answer.

In the end the court determined that the gift set out in the 1994 document was uncertain and therefore the gift failed. “In the circumstances, I am unable to give precise meaning to the expression, ‘as long as he needs it’, and therefore the duration of the … the gift is uncertain. I am not prepared to make any presumptions to remedy the ambiguity”.

In a 2013 case, a timely warning was issued “Homemade Wills are a curse. Occasionally where the assets of a testator are limited and where the beneficiaries are not in dispute no difficulties may arise in the administration of an estate. Flaws in the Will can be glossed over and the interests of all parties can be reconciled. But where, as here, the estate of the deceased is substantial, the Will is opaque and there is no agreement among the beneficiaries, the inevitable result is an expensive legal battle which is unlikely to satisfy everyone. All of this could have been avoided if the testator had consulted a lawyer and signed off on a Will which reflected his wishes”.

At Everingham Solomons we have the expertise and experience to assist you in making a Will that is in conformity with current law and deals with your particular circumstances Because Helping You is our Business.

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