Too often people don’t devote the time they should to making a valid Will and keeping it up to date. Making a valid Will is one of the most important things a person can do to protect their loved ones. Once made, a Will should not be shoved to the back of a drawer and forgotten. Over time a Will needs to be reviewed and updated to reflect life changing events. You should seek professional advice to ensure your Will reflects your wishes and is in conformity with the law. The pitfalls of not doing so could mean an expensive court case as the following case demonstrates.
The deceased died in 2011 leaving a substantial estate and a 2010 Will. After his death, a further document titled “My Last Will and Testament” dated 16 January 2011 was found amongst the deceased’s personal papers. The 2011 document had been prepared by the deceased and although signed by him, it was not in conformity with the formal requirements for making a valid Will in NSW because it was not signed by the deceased in the presence of two witnesses.
When a document fails to comply with the formalities required to make a valid Will, an application can be made to dispense with the requirements for making a Will where the court is satisfied that the person intended the document to form his or her Will. An application was made by the executors of the 2010 Will to determine whether the 2011 document was intended by the deceased to form his Will.
In the months preceding his death, the deceased typed instructions for new Wills and gave those to his solicitor to enable new Wills to be prepared for him. The instructions were all headed “My Last Will and Testament” and took the same form as the 2011 document. Just two and a half weeks after making the 2011 document the deceased attended his solicitor’s office but did not mention to his solicitor that he had changed the Will which the solicitor had prepared for him less than six weeks previously.
In describing the deceased as a “seasoned Will-maker” the deceased’s solicitor gave evidence that the deceased was well aware that a Will should be signed in the presence of two witnesses and in his view the deceased would not have wished to leave the enforceability of such a significant document as his Will to chance.
Ultimately the court was not satisfied that the deceased intended the 2011 document to form his Will. On the question of why the 2011 document was signed by the deceased, the court inferred that the deceased did so to record his then thoughts without intending the document should have immediate operation as his Will.
Don’t leave your Will to chance and risk having your wishes go unfulfilled. At Everingham Solomons we have the expertise and experience to assist you in making a Will Because Helping You is Our Business.
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