A person can enter into an agreement to make a will or not to revoke a will already made. Such agreement often involves two parties agreeing not to change their wills without the other’s consent. These agreements are more commonly called ‘mutual wills’. Although mutual wills can be a useful tool when estate planning for spouses with blended families, they should not be entered into lightly.  The recent Queensland case of Masci v Masci^[1] (‘Masci’) shows the possible implications of mutual wills.

 

The joint will

Mr and Mrs Masci were married for over 25 years. They both had children from previous relationships but did not have any children together. Mr Masci died on 7 February 2012.

Mr and Mrs Masci had executed a will on 2 April 2006 in a pre-printed form more commonly known as a will-kit. The will was completed in handwriting by Mrs Masci in their home but both parties were involved in its preparation. Rather than complete a separate will for each testator, the will was signed by both Mr and Mrs Masci as a joint will.  Of relevance, the will contained the following dispositive clause:

“I give Fernando Masci my husband is to stay in the house above and to handle all monies untill his…death…Elizabeth Masci is to stay in the house above and handle all monies if Fernando Masci is deceased before her. On the death of both Mrs Susan Camm…and Graham Silvano Masci…are to sell all possessions and 50% is to go to Mrs Susan Camm and 50% to [Mr Masci’s children]. This is to be reversed if either is deceased first.”

Mr Masci’s son and Mrs Masci’s daughter acted as joint executors appointed under the will but did not co-operate despite the hopes of Mr and Mrs Masci. While all parties accepted that the joint will had been validly executed in accordance with section 10 of the Succession Act 1981 (Qld), the administration of the estate became protracted because of interpretation issues arising from the wording of the above dispositive clause in the will.

 

Original application

When Mrs Masci attempted to sell the home that she owned with Mr Masci as joint tenants, Mr Masci’s son commenced proceedings in the Supreme Court of Queensland (‘Court’) seeking amongst other things the removal of Mrs Masci’s daughter as executor and a declaration that the will was a mutual will.

The Court granted only Mr Masci’s son a grant of probate since he was preferred to act independently and agreed that the will was a mutual will. The Court found that the wording of the will meant that the joint tenancy was severed from at least Mr Masci’s death, and the mutual will operated to give Mrs Masci a life estate in their home and all Mr Masci’s monies.

Mrs Masci appealed the Court’s decision to the Queensland Court of Appeal (‘Appeal Court’) on the basis that the joint will was so uncertain that it failed to dispose of Mr Masci’s estate and as such, he died intestate.

 

Appeal Court’s decision

In dismissing Mrs Masci’s appeal, the Appeal Court made the following findings:

• The Court did not err in finding that the dispositive clause in the will was capable of having an ‘ascertainable meaning’ and as such, Mr Masci did not die intestate^[2] and the Appeal Court affirmed the Court’s conclusions that:
  (i) the use of the words “stay” and “handle” indicated something less than an absolute interest was being given by Mr Masci;^[3] and
  (ii)   the instruction that the executors were to sell “all possessions” after they both died indicated that what was being given to the survivor of Mr and Mrs Masci was a life estate not absolute ownership;^[4]
• The Court was correct in finding that there was an implied agreement between Mr and Mrs Masci not to revoke the joint will without notice to the other.^[5] The Appeal Court affirmed that the family circumstances of Mr and Mrs Masci at the time they made the joint will, the fact that the will was a joint will, and the substance of the provisions of the will (i.e. to benefit the couple’s respective families equally) provided an “ample evidentiary basis”’ for implying an agreement for mutual wills;^[6] and
• The Court was not in error as to the finding of severance of the joint tenancy and correctly applied the legal principle that a joint tenancy can be severed when all joint tenants make mutual wills disposing of their property in a way that is inconsistent with the continued existence of the joint tenancy (e.g. a life estate).^[7]

 

The importance of legal advice for testators

Masci emphasises the importance of obtaining legal advice when preparing a will.  The case also acts as a cautionary tale for those who wish to use will-kits or draft their own wills.  Had Mr and Mrs Masci engaged a lawyer to prepare their wills, Mr Masci’s estate could have been spared costly litigation.  This is another case that demonstrates the significance of words in wills.

If you need a will prepared, contact Ramsden Lawyers today. We can assist you with any of your estate planning and deceased estate matters.

 

[1] [2015] QCA 245.
[2] Ibid at [29], [31].
[3] Ibid at [11].
[4] Ibid.
[5] Ibid at [34].
[6] Ibid; In Re the Will of Fernando Masci [2014] QSC 281 at [29].
[7] Masci at [39]; In Re the Will of Fernando Masci [2014] QSC 281 at [30].