Two recent Queensland cases demonstrate the importance of complying with legislation when drafting your will.
Massey & Ors v Smith & Ors
Mrs Smith signed a will dated 27 July 2009 that divided her residual estate equally between her siblings. She subsequently signed a handwritten note on 28 March 2011 that gifted one fifth of the sale proceeds of her house to her sister’s grandchildren (‘Note‘). However, the Note did not comply with the requirements of the Succession Act 1981 (Qld) (‘Act’) as her signature had not been witnessed.
When Mrs Smith died, her executors brought an application to the Supreme Court of Queensland (‘Court’) seeking a declaration that the Note is a codicil and that they could legally follow the directions contained in the Note. In order to make the declaration sought by the executors, the Court needed to be satisfied that Mrs Smith intended the Note to constitute an alteration of her will.
The Court eventually dismissed the executors’ application and as such, the executors were not legally permitted to follow Mrs Smith’s wishes in the Note. In making his decision, Martin J commented that in addition to not being witnessed, the Note did not contain terms consistent with “general dispositive language”. Instead, His Honour found that the language Mrs Smith used in the Note was “no more than an expression of desire” and did not purport to replace the original disposition provided in her will.
Donald v Guillesser
Mr Dawson died in an aeroplane crash with his wife. As it could not be established which of them died first, Mr Dawson was presumed to have died first given that he was the older of the two pursuant to section 65 of the Act. Mr Dawson left a will, which was in a pre-prepared form more commonly known as a ‘will kit’. Clause 5 of the will gifted Mr Dawson’s residual estate to his wife and if she “predeceased” him, then to several family members.
Mr Dawson’s mother applied to the Court for the entire estate on intestacy on the basis that clause 5 of the will failed because Mr Dawson’s wife did not actually predecease him. The Court was tasked with the proper construction of clause 5 of the will.
Mr Dawson’s mother lost her case both initially and on appeal. The Court decided that although by operation of section 65 of the Act Mr Dawson’s wife was presumed to have survived him by one day, section 33B of the Act applied. Section 33B of the Act meant that because Mr Dawson’s wife did not survive him by 30 days, the will takes effect as if she died immediately before him and as such, the family members were entitled to the residual estate and not Mr Dawson’s mother.
Even though the Court protected Mr Dawson’s intention, he could have spared his estate the costs of litigation had he engaged a lawyer to prepare his will instead of using a ‘will kit’. A lawyer would have ensured the wording of clause 5 did not contain any ambiguity regarding survivorship.
The importance of solicitors
The above cases show that drafting a will or codicil requires knowledge of the relevant succession laws. In particular, these Court decisions show the importance of words in wills; certain words need to be used for a document to be characterised as a will or codicil.
By using Ramsden Lawyers, you can have certainty that your will has been prepared properly. Those who undertake drafting their own wills do so at great risk that their wishes will not be legally recognised. Even if the law does recognise a non-compliant will that you have prepared yourself, this can still cost your estate thousands of dollars in legal fees due to disputes between your beneficiaries and executors over ambiguities.
For peace of mind regarding your will, contact Ramsden Lawyers today. We can assist you with any of your estate planning needs.