A Willmaker died in 2015 leaving a Will where she left her estate to two of her children to the exclusion of one daughter. The reasons for excluding her daughter were written into the Will with the following sentence reciting that the Willmaker considered the excluded daughter “to be a compulsive liar and her lies have hurt me severely over the years”. An application was made to the Court by the excluded daughter for the offending sentence to be excluded from the Will on the grounds that the words were of an offensive or libellous nature.
A Court has the power to omit a word or words from a Will in order to protect Court processes from abuse and to prevent unnecessary harm being caused to the subject(s) of the words but this power is to be exercised “on a case-by-case basis and with great care”.
The Court was of the view that the words used in this Will were words calculated “to wound the feelings, arouse anger or resentment in the mind of a reasonable person”. However the words used by the Willmaker did have a testamentary purpose. The words were used to explain why the Willmaker failed to make any provision for her daughter. The Court formed the view that the words used in the Will did not “represent an attempt by the deceased to use her Will as a vehicle for libel. Rather, she has sought to explain the reasons for the disposition of her estate and the exclusion of her daughter from her bounty”. Accordingly the Court refused the application to exclude the offending sentence from the Will.
The lesson to take from this case is for Willmakers to consider recording their reasons for making or not making certain gifts in their Will, not in the Will itself, but by way of a letter or statutory declaration that is separate to the Will. A Will becomes a public document once probate is granted. To avoid Willmakers airing their dirty laundry publicly and in an effort to avoid antagonising a would-be litigant, more often than not, the preferable approach is for a Willmaker to record their reasons separate to the Will. That way, the relevant letter or statutory declaration need never see the light of day unless the Will is contested.
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