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    Can handwritten notes on a Will be valid?

    Sep 6, 2019 12:57:46 PM

    The recent decision of Estate of the late James Sundell [2019] NSWSC 1108 highlights the issues and complexities that surround making handwritten amendments to a Will after it has already been signed.

    The Facts

    Mr Sundell died leaving two children, Kim and Anne.

    Mr Sundell in his Will, dated 9 November 2010, appointed his son, Kim, and his business associate, Mr Wooldrige as Executors. The Will dated 9 November 2010 left his interest in his company, Bogasi Pty Ltd (‘Bogasi’) to his son Kim; if Kim predeceased, then the Estate was to be divided among other beneficiaries including his daughter Anne, his business associate Mr Wooldridge and the director of Bogasi, Mr Walker.

    Bogasi was a trustee company for four trusts which controlled most of the family’s wealth, and of which Kim and Anne were beneficiaries.

    The 9 November 2010 Will was subsequently amended in 2011 by several handwritten amendments to give the shares of Bogasi equally to nominated individuals including Kim, Anne, Mr Wooldridge and Mr Walker. The amendments were signed by Mr Sundell however they were not shown to have been witnessed.

    It was suggested by Kim that this was done at his request to protect the “family interest” against a claim by his wife in Family Law proceedings.

    The Competing Claims

    Upon Mr Sundell’s passing, Kim sought a grant of probate of the original 9 November 2010 Will without the amendments.

    Anne subsequently sought a grant of probate of the Will dated 9 November 2010 with the handwritten amendments.

    The Law

    Section 8 of the Succession Act 2006 (NSW) states that “the document, or part of the document, forms: (a) the deceased person’s will if the court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased persons will if the court is satisfied that the person intended it to form an alteration to his or her will, or (c)….

    The court may have regard to the following principles in determining the intention of the deceased:

    • Any evidence relating to the manner in which the document or part was executed, and
    • Any evidence of the testamentary intuitions of the deceased person, including evidence of statements made by the deceased person.

    The court ultimately has the discretion to decide whether an amendment made to a Will was made with the required intention to satisfy the above provisions.

    Court’s Conclusion

    Looking at Mr Sundell’s intentions in relation to the amendments to the Will, the court looked to the surrounding circumstances of the family relationships and the running of the company, Bogasi, by Mr Sundell.

    Mr Sundell owned two shares in Bogasi at the time of writing the Will. Between the date of writing the Will and the date of death, the shareholding was subsequently converted into five shares of nominal value.

    Kim claims that Mr Sundell ceased to actively work in the family business in 2008. Anne claims it was not until 2016 the Mr Sundell ceased to actively work in the business.

    Discussions about diversifying the shareholdings in Bogasi began in 2008 evidenced by emails.

    At the time of the Will being written in 2010 and the handwritten amendments in 2011, Mr Sundell still held the two shares in Bogasi, evidencing that there had been no diversification at this time.

    In 2010, Kim separated from his wife and it was around this time that the family business structure began to change. Kim claims the changes were done to protect the family’s business from his former wife. Anne claims it was done with the intention of diversifying the control of the business. Kim’s family law matter was settled in 2012.

    In 2013 the deceased caused the issue of three additional shares in the business, Bogasi. As a result, the deceased held five shares in Bogasi.

    Kim submitted evidence to the court stating that the handwritten amendments were made in 2011 because of his family law proceedings, to protect the family business from his former spouse. Kim claimed that he instructed his father to make the handwritten amendments and that he told his father to make sure the amendments were witnessed properly. He claimed that following his family law settlement, he told his father not to worry about updating the Will to then remove the handwritten amendments as they were not legally enforceable anyway.

    Kim’s claim relied on proving that Mr Sundell did not update his Will to remove the handwritten amendments as he was under the impression that the handwritten amendments were not effective, therefore his true intention was to leave all shares in the business to Kim in the first instance (as was written before the handwritten amendments were made).

    Evidence was heard from Mr Wooldridge who wrote the handwritten amendments to the Will under the instructions of Mr Sundell. Mr Wooldrige claimed that he witnessed Mr Sundell sign the amendments that were made.

    Evidence was also given by Anne who claimed she had conversations with the deceased prior to his death to the effect that the deceased would provide for Anne and her family and they would not have to worry about Kim.

    The court then looked at all the evidence to determine the true intention of Mr Sundell and whether the handwritten amendments were to take legal effect.

    The court ultimately found that Kim’s case was “unattractive” and that the evidence brought by Kim in relation to the conversations he had with his father were “implausible and seemed entirely fabricated to be in Kim’s self-interest.”

    The court found that Mr Sundell’s intention was for the handwritten amendments to take effect, otherwise he would have “…tore up, amended or changed the Will after the conclusion of the Family Court Proceedings.

    Where to from here?

    It is important to consider the surrounding circumstances when making amendments to a Will.

    In NSW it is possible for handwritten amendments that have not been signed or witnessed properly to form part of the Will, if the court is satisfied that it reflects the testamentary intention of the Will-maker.

    The risks of making handwritten amendments to a Will (which may include incurring significant costs to the Estate) greatly outweigh the inconvenience of re-drafting a Will or preparing a codicil to the Will.

    The court has discretion to determine whether the testamentary intention is there, and therefore it is uncertain to conclude in advance whether handwritten amendments will be included in the Will.

    The preparation of a codicil is the easiest way to make minor amendments to a Will, and this can be done in a very time and cost-effective manner.

    If you have further questions, please contact Andrew Frank at afrank@franklaw.com.au.

    This is not legal advice. 

    Photo by ron dyar on Unsplash

    Andrew Frank

    Written by Andrew Frank