Can a handwritten document constitute a legal Will?

The curious case of Sadleir v Kähler & Ors [2018] QSC 6

Background

On 5 November 2016, Mr Kähler (“Mr K”) passed away at the age of 72. He had never married and did not have any children.

Shortly after Mr K’s death, his nephew searched his house in an attempt to locate a Will. While his nephew did not find a Will, he did find a receipt from a law firm in Kingaroy, acknowledging that Mr K had deposited documents with them on 12 July 1994. One of those documents was a handwritten note purported to be signed by Mr K and which made provision for the distribution of assets owned by him after his death. It did not, however, meet the formal requirements to be a properly constituted Will as it was not witnessed.

Mr K’s niece, Ms Sadleir, sought an order pursuant to the Succession Act 1981 that the handwritten document dated 15 January 1984 formed the Will of Mr K.

The Law

Section 10 of the Succession Act 1981 (Qld)[1] (“the Act”) provides that a valid Will must –

· be in writing

· signed by the testator

· signed in the presence of two witnesses, who attest and sign the Will in the presence of the testator

However, section 18 of the Act provides that a Court may dispense with those formal requirements if it is satisfied that the person intended the document to be their Will. In such circumstances, the Court will consider whether there is sufficient evidence to find that the document was actually created by the deceased person, the document purports to state the testamentary intentions of the deceased person, and the deceased person intended the document to be their Will.

The Court has taken a liberal approach to interpreting section 18, and there are many examples of documents which have been declared to be Wills in the case law, for example:

  • an electronic version of a Word document [2]
  • documents created on an iphone [3]
  • a DVD [4]
  • an unsent text message [5]

In this case, the Court was asked to consider whether the handwritten note held in the solicitors’ custody could be considered Mr K’s Will.

The Decision

Her Honour held that whilst the unwritten document dated 15 January 1984 failed to comply with the formal requirements of section 10 of the Act due to the absence of witnessing signatures, pursuant to section 18 and on the balance of probabilities it could be construed as the Will of Mr K.

The Judge came to the conclusion that the document purported to state the testamentary intentions of Mr K, based on consideration of a number of circumstances. Primarily, the handwriting on the document, which appeared to be identical to other examples of Mr K’s handwriting, referred to the document as “my Will”. The document was dated and signed. The document appeared to state the assets that were available at the time for distribution upon his death. Whilst no executor was appointed, Mr K identified the beneficiaries to whom his property was to be distributed on his passing.

Furthermore, this document was deposited into the safe custody of solicitors in Kingaroy in 1994, who produced a receipt acknowledging this deposit which described the document as “Will dated 15 January 1984”. Such factors were considered indicative that Mr K intended the handwritten document to constitute his Will, and not a draft to later be formally executed.

Construing the Will:

In reaching the determination that the handwritten document constituted Mr K’s Will, her Honour was faced with determining how it should be construed. Of particular focus was the construction of a clause which purported to give a ‘gift over’ upon a certain contingency. That is, the Will stipulated that Mr K’s nieces and nephew would take the assets pursuant to the Will, if their father (Mr K’s brother) separated or divorced from his wife. Hannes did not state in his Will, however, what should happen if his brother pre-deceased him not having separated from or divorced his wife, as was the case.

In reaching a determination her Honour reaffirmed the “Golden Rule” that “if it is possible, the Court should prefer a construction which avoids intestacy” [6]. In considering the effect of the contingency clause, Her Honour noted that, although there is a general rule that when a gift over is subject to a certain contingency the gift will not take effect unless the exact contingency happens, exceptions do exist, such as in the case of Jones v Westcomb [7].

In this case, it was held that, in considering all the circumstances:

if [Mr K] had been asked what was to happen to his estate if his brother […] separated from his wife not by choice but by death, it seems apparent that [Mr K] would have said: a fortiori his estate was to go to [his brother’s] children [8].

On this basis it was concluded that the real contingency was satisfied, and the gift over to My K’s nieces and nephew should operate.

Concluding Remarks:

Despite the determination of this case, many homemade Wills end up in Court with parties disputing their proper interpretation. In the words of Master Sanderson of the Supreme Court of Western Australia: ‘homemade Wills are a curse’, and can become a ‘complicated and costly enemy in disguise’.

For further illustration of this point, please see the following articles:

· Homemade Wills ; and

· DIY Will making risks in estate planning.

It is very important to ensure that your Will is drafted by a competent and properly qualified lawyer.

Have a handwritten Will and want advice on whether it is sufficient? Contact us.

While your intentions appear clear to you as a testator, they may not be so clear to others attempting to interpret your words after you have gone. This is why it is imperative to ensure those you love are left with the clarity of a properly drafted and executed Will, which clearly sets out your true intentions.

To speak to one of our experienced Wills & Estates lawyers, please call us on 3252 0011.

Authors: Eustacia Yates & Courtney Linton

Footnotes

1 Succession Act 1981 (Qld)

2 Mahlo v Hehir [2011] QSC 243

3 Re Yu [2013] QSC 322

4 Mellino v Wnuk [2013] QSC 336

5 Re Nichols; Nichol v Nichol [2017] QSC 220

6 Re Harrison, Turner & Hellard (1885) 30 Ch D 390 at 393 per Lord Esher MR

7 (1711) Prec Ch 316; 1 Eq C Ab 245, pl10; 24 ER 149

8 Sadleir v Kähler & Ors [2018] QSC 67, par [38]

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