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    The foundations of Estate Litigation

    Mar 18, 2020 11:59:04 AM

    Estate Litigation concerns suits against the Estate of a deceased person, usually because they were passed over for an inheritance but also in relation to how the Estate is being managed or in relation to the validity of a Will.

    A Will is the key starting document of Estate litigation. A formal Will complies with all formal requirements for a proper Will, but an informal Will although it does not comply with all formal requirements may nevertheless be upheld by the Court.

    A formal Will must have the following requirements pursuant to section 6 of the Succession Act 2006 (NSW) (the Act):

    1. Be in writing;
    2. Signed by the person making the Will; and
    3. Witnessed by 2 or more witnesses.

    In Writing?

    A Will must be a document in writing (see also section 3(1) of the Act). While this does not mean that there is a particular pro forma document that must be filled out, it does mean audio and video recordings are not the proper form for a Will. Nevertheless, they may be admitted as an informal Will under section 8 of the Act.

    In Estate of Wai Fun Chan (decd), Re [2015] NSWSC 1107 the deceased had an amendment to their written Will, known as a codicil, recorded via video. The Court stated that “Time and circumstance conspired against a return to the office of the testatrix’s solicitor for the preparation of a codicil. With the benefit of the second plaintiff, and the second plaintiff’s spouse, the testatrix made a short, oral statement captured on a DVD recorder.” Although a novel approach, the Court held that although the deceased’s intentions were not recorded in writing, the video constituted a valid codicil and so formed part of the informal Will.

    Signed by the deceased

    A Will must be signed by the deceased in the presence of others, this is so that there is a clear expression of the deceased final wishes. While clearly presents an issue if the Will takes the form of an audio or video recording, putting that issue aside, it also presents issues where the Will is drafted and in its final form but the deceased passes away before signing the document.

    In the Estate of Springfield (1991) 23 NSWLR 535 the deceased left a handwritten, unsigned and undated Will next to a note saying “Sal…I have left the house to you in the Will’. The Court upheld this as the Will as the deceased expressed her own final intentions in the handwritten note by calling it a Will. By contrast in the matter of Robinson v Jones [2015] VSC 222 the deceased had a previous formal Will but asked his solicitor to make a further Will removing his ex-wife from the Will. However, although the Will was sent to the deceased he died prior to signing. In this case the Court held that the deceased should have known that the Will needed to be signed and there was no supporting evidence that the draft was intended to be his last Will and so the unsigned document was not held to be the deceased’s Will.

    Witnesses

    The signature of the deceased must be witnessed by at least two people. While these people need not necessarily sign together, they must be present with the deceased when they sign and cannot be beneficiaries under the Will.

    In the case of Re Estate of Pearson (2014) 13 ASTLR 426 the Court stated that “Following the taking of instructions as to the content of the Will, Mr Jappe asked the deceased whether he wished to sign a handwritten “stopgap“ Will pending the preparation of a more formal document. … The deceased agreed. Mr Jappe informed the deceased that usually two witnesses were needed, but that as Mr Jappe was the only person present, he would witness the deceased’s signature.” The deceased passed away before the formal Will was signed.

    In these circumstances the Court heard evidence as to whether it was the intention of the deceased for the handwritten document to form part of his Will, and when the intention lined up with the informal Will, the Court held that the informal Will although not witnessed correctly could be admitted. It is important to note that the case required third party evidence in addition to the informal Will to be satisfied.

    Take Away

    A Will is the starting block for Estate litigation. The existence of a Will, whether formal or informal, influences the course of the litigation and the type of claim that may be brought. 

    Here at Frank Law we have extensive experience in Estate Litigation for both plaintiffs, the Estate and Defendants. A couple of examples of current cases in our office include as follows:

    1. Family Provision claim against the Estate for $3 million where the deceased provided a loan to our client which was forgiven, and only nominal provision was made for them as a result in the Will.
    2. Acting for the executors in a claim against the Estate, where the parties intend to mediate and settle the matter outside of Court.

    If you have further questions, please contact us at frank@franklaw.com.au

    This is not legal advice. 

    Andrea Harrold

    Written by Andrea Harrold