DIY unsigned will: witness accounts differ but doc declared valid

DIY wills often survive contests over their legal validity but invariably put the will-maker’s estate to enormous expense to establish their legitimacy.

Leslie Turnbull died on 8 October 2022 with no spouse and one living child, Alexander.

Having been diagnosed with terminal lung cancer in late-2017 or early-2018, he was advised to put his affairs in order.

Leslie obtained a DIY will form of the type sold by newsagents.

He completed the form with directions as to the distribution of his assets before two friends who signed as witnesses. But at no stage did Leslie actually sign the will himself.

Leslie’s estate consisted of $147,000 in bank funds and homes at Lawnton and Everton Hills.

The will form appointed his brother Ken to be executor and provided a specific gift of “my car” to friend Lee Hornby who was one of the two witnesses of to the will.

Everything else was left to Alexander.

Where a will is signed in accordance with statutory formalities and requirements, it is presumed to be valid unless proven otherwise.

On that basis the vast majority of applications for probate are dealt with relatively inexpensively by the Probate Registrar without a court hearing.

But where there is contention or uncertainty, the issues are likely to be referred to a judge of the Supreme Court for determination.

In Leslie’s case the executor had to ask the Supreme Court to issue a grant of probate in respect of his ‘informal will’.

The court was prepared to accept the that the document stated the will-maker’s intentions and that it was ‘testamentary’ in nature.

But whether or not Leslie intended it to constitute his will really depended on whether or not he had intentionally deferred signing it, or whether that was in oversight.

There were some differences in the recollection of the two witnesses in that regard.

Witness Hornby recalled “Leslie said to me that he would get us back together again at a later time to finish signing it properly”.

The other witness, Stephanie Wood swore that Leslie had said to her “words to the effect that he would sign the purported will after I left”.

Justice Peter Davis had to weigh up all available facts.

“The evidence is strong that Leslie intended the will to be effective immediately and operate upon his death,” he concluded, pointing to the facts that he was terminally ill when he had made it and that he had later told Ken of all its terms.

The judge also noted the will was found where the will-maker had been seen to place it – inside a “buffet” cabinet where he kept important documents.

“Had Leslie changed his mind and not wished to execute the will, he would surely have destroyed it rather than keeping it in a safe place with other important documents,” Justice Davis observed.

Ultimately, the judge was satisfied that the surrounding circumstances demonstrated Leslie’s intention that the unsigned document was intended to be his will.

Not only did the DIY will cause the estate enormous expense, the exercise took nearly 9 months to resolve.

Re Turnbull (dec’d) [2023] QSC 140 Davis J, 27 June 2023

source https://qldestatelawyers.com.au/diy-unsigned-will-witness-accounts-differ-but-doc-declared-valid/

Insufficient excuse for estrangement; further provision refused

Children left out of their parent’s will often make a claim against the estate to reverse the will-maker’s decision to exclude them.

More often than not, they come to an agreement with the executor and beneficiaries as to what should be provided for them from the estate.

When agreement can’t be reached, the matter goes to a trial where a judge considers whether a benefit should be provided and if so, how much.

John Speechley – a widower – died at age 87 in January 2019 survived by three of his five children, but son Peter and daughter Theresa also died before John.

John’s estate consisted of his Buderim residence – a home unit of around $480,000 in value – and bank funds in the order of $50,000 after expenses. Judge Gary Long SC noted that this was a “relatively small estate”.

In his last will dated 5 July 2016, John left his estate solely to daughter Amanda, and named her as executor.

No provision was made for his son Anthony or daughter Jennifer.

Anthony made a claim for provision out of the estate and his claim was resolved by agreement that he receive $25,800.

Jennifer – a former bankrupt – also made a claim against the estate for provision, and the claim went to trial as mediation had not been successful.

Jennifer was discharged from bankruptcy in August 2021, after she filed her application with the court against the estate, but prior to the trial.

Because her estate claim had arisen during her bankruptcy, her trustee in bankruptcy notified her that she must pay $16,130.75 out of any provision she ultimately received from the estate.

Amanda at first opposed Jennifer’s claim for former provision and contended only her trustee had standing to bring it.

When the matter came before judge Gary Long SC in the Queensland District Court, that preliminary point was determined in Jennifer’s favour in that the claim was not an “enforceable right of action’, but rather a mere “opportunity to apply” for what is ultimately an exercise of discretion by the court.

It was important for Jennifer to have been discharged from her bankruptcy before any order could be made in her favour, as the court will generally not do so if its effect would be simply to benefit her creditors.

The next issue was whether any provision should be made in the context of the “small estate” where Jennifer had specifically been excluded by her father.

The judge turned his mind to Jennifer’s needs, how any payment would adversely affect Amanda and the nature of the estrangement between Jennifer and the deceased.

Jennifer was in receipt of a disability support pension, had minimal assets, limited savings, no super, and owned no real estate. Amanda however was in no better financial position.

Amanda had clearly enjoyed a close relationship with the deceased while Jennifer did not.

Jennifer pointed out that her difficult relationship with her mother had – despite attempts to improve it – impacted on that with the deceased.

His honour was unconvinced by her account because they conflicted with the written accounts of both her parents and the testimony of another relative as well as – to a lesser extent – Amanda’s assertions to the contrary.

He ruled that – although Jennifer had detailed some need for support from the estate – he could not rely on her evidence about that need due to her evidence regarding her relationship with her father being proven unreliable. The beneficiary’s own needs in such a small estate in the absence of a cogent justification meant that it would not otherwise be appropriate to make any provision for her.

On a precautionary basis – ie if his decision was to be reversed on appeal – his honour quantified what Jennifer would otherwise be entitled to receive based on her need but reduced for the estrangement at $50,000.

Jennifer’s claim was dismissed, with the judge deliberating over 9 months to carefully consider his final decision.

This case demonstrates the danger of going to trial where success or failure can turn on how well witnesses perform in the witness box under cross examination, regardless perhaps of the truth of the claims being made.

Speechley v Willemyns [2023] QDC 154  Long SC DCJ, 25 August 2023

source https://qldestatelawyers.com.au/insufficient-excuse-for-estrangement-further-provision-refused/

Right to reside proves baseless; beneficiary to repay lost rent

What are the consequences to a family member who refuses to give up occupation of the deceased’s home after the will-maker’s death despite an executor’s demand that they do so.

Patrick Tehan died in July 2021 aged 87 never having married.  By a will of July 2018, he left one third of his estate to his sister-in-law Gloria and the remainder to four nieces and nephews.

Two of those nephews – Luke and Damien – were appointed to be his executors.

Another nephew, Ben Tehan, had been residing in the Patrick’s Windsor home prior to his death.

Ben filed a caveat against the estate contending that his uncle had lacked capacity at the time his last will was made.

He also refused to vacate the residence when asked to do so by the executors, alleging an agreement with Patrick and his brother John, that he had a right to reside rent free in the home in perpetuity in exchange for the care he provided to Patrick.

The executors naturally enough wanted to have the home sold and the estate administered.

They filed proceedings for a solemn form grant of probate and for Ben to be required to vacate the home.

The issues came to trial before Justice Melanie Hindman in the Supreme Court in Brisbane.

Ben produced no evidence of any lack of capacity on Patrick’s part and effectively abandoned that claim.

The executors were none the less required to satisfy the court on the issue not least because the death certificate listed dementia as a cause of death.

They called solicitor Nathan Donovan who had prepared the 2018 will and who swore that he took instructions from the deceased at his home at which time he was provided clear instructions as to how his estate was to be divided.

Donovan took an audio recording in which the will-maker expressed how he wished his estate to be divided.

He had also recommended to the family that given Patrick’s age, it would be prudent for him to consult a GP to medically confirm he had capacity to make decisions about his testamentary affairs.

Patrick did in fact attend at the Windsor Medical Centre six days before the 2018 will was executed to obtain a letter as to his ability to make a will and for an “over-75 year old annual health assessment”.

Dr Hossain provided a letter certifying “His memory looks normal, and he is capable of making decisions on his new will”.

The clinic’s patient records that were produced at the trial revealed no concern about the deceased’s mental capacity then or previously.

The court was thus well satisfied that that the deceased had capacity to make his last will.  Accordingly the 2018 will was declared valid and probate of the will was granted to the executors.

Ben similarly could not produce any evidence of any agreement concerning his right to reside rent free in the home. That claim was ultimately also dismissed.

The court next examined what Ben must reimburse the estate for his occupation to account for lost rental income.

It relied on the evidence of a valuer that the weekly market rent was $460 when Patrick died but by the date of the court hearing, had escalated to $560.

Although the lost rent on those calculations totalled $66,000, the court restricted his liability to $50,000 to take into account the likely agent’s costs and management expenses that would have been incurred.

He was also ordered to pay the estate’s legal costs of the court dispute.

Ben’s debt will be deducted from his share of the inheritance he was otherwise to receive from Patrick’s estate.

Tehan v Tehan [2023] QSC 172 [2023] Hindman J, 23 June 2023

source https://qldestatelawyers.com.au/right-to-reside-proves-baseless-beneficiary-to-repay-lost-rent/