The Risks of Preparing an Informal Will – Lindsay v McGrath [2015] QCA 206

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What are the risks associated with preparing an informal Will?  In this article, Kathleen Watt discusses the need for Will-makers to take great care when preparing their Will to ensure it satisfies all formal requirements so that it may be properly recognised by law after they pass away.

The consequences of an improperly made will can be that loved ones are left with ambiguous directions and have to pay costly legal fees out of their inheritance.

The decision of Lindsay v McGrath [2015] QCA 206 is the first Queensland Court of Appeal decision which involved an informal Will.

Background

Nora Priscilla Lindsay passed away on 16 October 2012 at age 90 and was survived by her two adult children Geoffrey (the appellant) and Heather (the respondent). Nora made a Will with the Public Trustee back in 1986 however later revoked that Will prior to her passing. As there was believed to be no other Will the appellant applied to the Supreme Court for letters of administration on the basis of intestacy.

On 9 July 2013 Geoffrey later found handwritten documents written in the form of an informally made Will in a storage box containing personal items removed from the deceased’s family home. The contents of the document made instruction to gift the deceased’s Camp Hill property and its contents to Geoffrey and specifically made instructions not to leave anything to Nora’s estranged daughter (the respondent) and her children.

The appellant then brought an initial application in 2014 seeking that the Court find that the handwritten document as Nora’s last Will. The application was initially dismissed and later appealed in 2015.

The Law

Section 18 of the Succession Act 1981 (Qld) provides that the Court may dispense with the formal requirements of a Will so long as there is a document (or part of a document) which purports to state the testamentary intentions of a deceased person and demonstrates to the court sufficient evidence it was intended to form the deceased person’s Will.

The Court in this case considered the test provided in the NSW Court of Appeal decision in Hatsatouris v Hatsatouris [2001] NSWCA 408 to determine whether the document was a valid will:

  1. Was there a document?
  2. Did the document purport to embody testamentary intentions?
  3. Did the evidence satisfy the Court that the relevant deceased by some act or words demonstrate that it was his/her intention that the document operate as his or her last will?

The Decision

Despite there being no question that the handwriting in the document was the deceased’s and there was sufficient evidence supporting the fact the handwritten document embodied her testamentary intentions, the Court dismissed the appeal as there was insufficient evidence to establish this was intended to form the deceased’s final Will.  That is, the court effectively found that the informal documents did not amount to a Will.

The court noted from the Western Australian case of Oreski v Ikac, that it is not sufficient if the document was intended to record gifts “…or to be a note of instructions or a draft will or a ‘trial run’”[1] – there must be sufficient evidence that the “…deceased did not want to make changes to that document.”[2]

Given that Nora had prepared an earlier Will in 1986, it was presumed that she would have been aware that her Will should appoint an executor and contain her signature properly witnessed by a third party. Although the deceased clearly wrote her name on the document, there was no formal signature or date to demonstrate the document was now finalised.

Our Concluding Remarks

This case demonstrates the risks of improperly preparing a Will and the scrutiny the Court undertakes. before granting probate to an informal Will.

Even though the appellant was able to provide clear evidence that the deceased intended to disinherit her estranged daughter, her wishes were not honoured as the document did not satisfy s18 of the Succession Act.

Seeking legal advice at the time of preparing a Will can save your family much time, heartache and money down the track.

Have you made an informal Will and would like to rectify or create a new one?  Contact us today.

If you would like further advice on an informal Will left by a loved one, or you would like to have your Will prepared by one of our experienced Brisbane Estate Lawyers, please contact our Business Development Team on (07) 3252 0011 to arrange an appointment.

[1] Lindsay v McGrath [2015] QCA 206 9.

[2] Lindsay v McGrath [2015] QCA 206 60;73.