DIY Will making risks in Estate Planning

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Masci v Masci [2015] QCA is a recent Queensland Court of Appeal case involving a family legal dispute over a DIY Will and the intentions of the deceased will-maker. It highlights the risks of Estate Planning without seeking professional legal advice.

Facts

Mr and Mrs Masci were a married Queensland couple, both with children from previous relationships. They did not have any children together. In 2006 Mr and Mrs Masci prepared a joint Will at their home without seeking legal advice. The Will:

  1. Appointed one of each of Mr and Mrs Masci’s children as joint executors;
  2. Provided for Mr Masci’s survivor or Mrs Masci’s survivor (whoever passed away first) to remain in the family home until that survivor’s death;
  3. Directed that when this survivor died, Mr Masci’s children would receive 50% of the couple’s joint assets and Mrs Masci’s children would receive the other 50%.

A legal dispute over the Will arose following Mr Masci’s death in 2012.

In 2003, Mr and Mrs Masci had purchased a property on the Gold Coast. Mr and Mrs Masci had owned this property, the family home, as joint tenants. Joint tenancy, however, means that when one joint tenant dies full ownership is transferred automatically to the surviving joint tenant by way of survivorship and cannot be transferred to any other person as a gift under a Will. Mrs Masci, therefore, took full ownership of the property following her husband’s death by way of survivorship. Mr Masci’s interest in the home never formed part of his estate to be dealt with in accordance with his Will.

Consequently, Mrs Masci sold the family home, an act which was contrary to the express terms of the Will.

Disputes arose over these terms, the intentions of the parties when the Will was created and whether or not Mrs Masci was bound to follow the Will’s instructions.

In 2014, Mr Masci’s son (also an executor) applied to the Queensland Supreme Court to enforce the Will’s provisions.

Findings of the Court

The Queensland Court of Appeal held that:

  1. Mr and Mrs Masci had intended to make a Mutual Will (a contract to adhere to the terms of the Will following the death of either spouse); and
  2. Mr and Mrs Masci had intended to sever the joint tenancy of their property through the creation of the Will, rendering both spouses tenants in common. No longer joint tenants, Mr Masci’s interest in the property could then be passed on to his successors.

Lessons

Ultimately, the cost of the three-and-a-half year court proceedings in Masci v Masci was far many many more times greater than the cost of the assistance of a Will making lawyer at the time the documents were made. The case serves as a warning about DIY Will making. Not seeking legal advice when Will drafting can often result in multi-partied disputes and lengthy and costly court proceedings to discern the intentions of original will-makers, as well as the rights and interests of the succeeding parties to the Estate.

Problems could have been avoided by the help of an estate planning lawyer at the time of making the Wills to:

  1. Sever the Joint tenancy;
  2. Then draft the Wills.

Our 1,2,3 Will Making rather than DIY Will making

Clients are surprised by just how cost effective and efficient our 1.2.3 Will Making with one of our Brisbane Estate Planning Lawyers is. Find out more and call our Business Development Officers on (07) 3252 0011, if you would like to make an appointment today.