Unconventionally signed DIY will declared valid at considerable expense

Regrettably DIY wills almost invariably lead to the will-maker’s estate being put to unnecessary expense to overcome validity or interpretation issues and other legal problems.

Kevin Chambers died on 17 March 2023 at the age of 91.  His wife and son died before him and he was survived by his daughter Cherie.

He made his will in October 2017 – after the death of his son – leaving everything to Cherie and appointing his friend Daniel to be the executor.

Kevin used a pre-printed will kit will, which he likely purchased at the local newsagent or post office.

Kevin filled in the DIY forms. The will was comprised by two pages, and on page 1 – after naming his grandson Daniel as executor – he specified in clause 3 that he gave Cherie “my entire estate”.

He then signed the will adjacent to clause 3 and at the bottom of page 1 but not in the usual place at the end of the will.

Despite there being further sections that could be completed on page 2, Kevin added nothing further on that page.

He failed to sign the attestation clause on that page, despite directions on the pre-printed form to do so.

Kevin’s will was witnessed by two friends. They did not sign on page 1 at either of the two places where Kevin had signed. They signed at the attestation clause at the bottom of page 2 where directed where Kevin had failed to do so.

Daniel did not take up his role as executor and instead Cherie applied for a Grant of Letters of Administration as the sole beneficiary, claiming that the will was validly made.

Whilst it was quite clear Kevin had intended to make a will, the fact he had signed it only on page 1 and not the attestation clause at it end where the witnesses had signed, caused the Probate Registrar to have concerns.

In her opinion the will was not validly executed in accordance with the requirements of s 10 of the Succession Act. She directed that the validity issue be heard and determined by a judge of the Supreme Court.

When the matter came before him, Justice Peter Davis declared the will to have been validly made despite the irregularities in how Kevin and the witnesses had signed it.

In his view, the irregularities did not mean the formal requirements of s 10 had not been met.

“Neither the positioning of Kevin’s signature on the first page, nor his failure to sign the second page, constitute a breach of the requirements,” he observed.

“There is nothing in s 10 which suggests that the witnesses must sign on the same page or place as the testator,” he ruled.

Given it was beyond dispute that Kevin signed the will with two witnesses who were present to see him do so and the witnesses each attested and signed the will in front of Kevin, all required formalities had been met.

That Kevin and the witnesses did not sign the will at all the required places unnecessarily complicated what otherwise was a straightforward probate application and added significant expense.

Attempts to save expense by completing a DIY will – rather than one prepared by an experienced solicitor – almost invariably add such expense to estate administration and regrettably, delay the process by many months.

Re Chambers (dec’d) [2023] QSC 230 Davis J, 13 October 2023

source https://qldestatelawyers.com.au/unconventionally-signed-diy-will-declared-valid-at-considerable-expense/

Capacity fight over a delusion daughter was a witch

Issues concerning a will-maker’s “capacity” usually relate to dementia and the like. Sometimes though, they traverse broader aberrations of the mind such as delusions, fantasies and superstitions.

Jan Grzeczny was born in Poland in 1920 and migrated to Australia in 1949.

He married Maria in 1951.  They had a daughter, Teresa – born in 1952 – the same year in which Jan adopted Maria’s son Richard from a former relationship as his son.

Teresa and Richard became estranged from both Jan and Maria in the 1970s and thereafter had minimal contact. Teresa became somewhat closer to them from 2015.

Jan died in December 2018, at the age of 97. He was until then living independently in a Perth suburb and was still driving and managing his own finances.

Richard and Teresa were not named as beneficiaries in any of the wills he had made in 1981, 2014, 2017 or 2018.

In the 1981 will, Maria was appointed the executor and sole residuary beneficiary. Maria had though predeceased Jan which thereby granting to Richard and Teresa standing under the rules of intestacy to claim the entire estate if the 1981 will was propounded.

To prove their entitlement in intestacy, they had to clear off all the subsequent wills including that of 2018 where Jan had appointed Joachim and Maria‑Luise Diedler – whom he had known since 1989 – as residuary beneficiaries.

In September 2019 Teresa applied to the Western Australian Supreme Court for a Grant of Letters of Administration of the 1981 will arguing that the later wills were all invalid due to delusions she claimed had plagued her father.

The Public Trustee of WA, who had assisted Jan in the preparation of the 2018 will was named as executor but renounced its appointment.

Joachim and Marie-Luise themselves applied for a grant which led to a contest before Justice Natalie Whitby in a July 2023 trial.

The well known prerequisites for establishing legal capacity include a comprehension on the part of the will-maker of all those persons who have a reasonable claim to receive part of their estate.

He or she must also be absent of any disorder of the mind or delusion that “poisons their affections” or influences the contents of the will.

Justice Whitby was satisfied that Jan comprehended his children’s rightful claims but that for various reasons he chose not to provide for them.

She further concluded that Jan was indeed affected by delusions that had poisoned his mind in arriving at those decisions.

Against the contentions advanced by Joachim and Marie-Luise, the evidence clearly demonstrated he thought Teresa was a “witch” who was trying to poison him and had flown through his window to steal from him.

As to Richard, Jan harbored a delusion that he had tried to poison his coffee in 2014.

Her honour ruled those delusions influenced the will-maker to not provide for his children in his 2018 will and that in the absence of those delusions, they would likely have been included as beneficiaries.

The evidence “overwhelmingly supports a conclusion that the deceased did not have testamentary capacity when he made the 2018 will,” Justice Whitby concluded. “The 2018 will is not valid.”

Her honour went on to say that because the evidence supported a finding that Jan was suffering from the delusions from at least 2012, the validity of the 2014 and 2017 wills was also called into question.

It was in her view inappropriate to make any final determination of their validity until all of the beneficiaries under those wills had been given an opportunity to be heard.

A further contest may ensue if any beneficiary decides to argue that either of the 2014 or 2017 wills are valid.

Diedler -v- Borowiec [No 2] [2023] WASC 396 Whitby J, 18 October 2023

source https://qldestatelawyers.com.au/capacity-fight-over-a-delusion-daughter-was-a-witch/

Disinherited child denied estate provision – needs “fully covered” by NDIS

Family provision applications enable an eligible person to seek “adequate provision” for their “proper maintenance and support” from the estate of a deceased person when something less or nothing at all has been provided for them.

There is no mathematical formula and in practice, the courts can consider practically anything that they deem relevant to determine and order “such provision as the court thinks fit”.

At a minimum, a prospective applicant must be able to show they are an eligible person, ie a dependent or a family member; that they need a better provision from the deceased’s estate than has been provided; and in all the circumstances it is just and reasonable that the estate of the deceased person ought to provide a greater benefit.

What about dependents who have a disability?

That the needs of a disabled dependent might ordinarily be met from social security and welfare entitlements – eg NDIS or a disability pension – does not disentitle them from a proper and just provision from a deceased estate.

Disability sometimes leads to a legal tension  in the context of what provision ought to be made for a person who is in receipt of such assistance and entitlements.

Consider the case of Luis Oliveira who died in 2019.  He was survived by his wife, Felicidade, to whom he had been married for more than 50 years, and their 7 children.

Luis’ will left the entirety of his $550,000 estate to his wife who had recently been diagnosed with Alzheimer’s Disease and was in assisted-care living.  Felicidade also gained sole entitlement to $730,000 held in a joint bank account. No benefits were provided to any of the children who were all adults.

Maria – who has a particularly severe form of Down’s Syndrome as well as other medical conditions and is non-verbal – filed proceedings in the NSW Supreme Court for a share of her deceased father’s estate.

In considering the claim, Justice Francois Kunc was mindful of her disability and needs but noted that her ongoing medical and personal needs were fully covered by her NDIS package and social security entitlements.

Her brother acting as her advocate claimed that – regardless of her medical and personal needs being covered by existing arrangements – she was in need of provision of a significant lump sum to cover ‘contingencies’ that might occur.

Rather than presenting expert or other evidence as to her additional needs – or the likelihood of medical and other expenses that should be budgeted for – Maria’s advocate could only speculate on what those future needs might be.

Although courts frequently make allowances for reasoned future contingencies supported by medical experts, Justice Kunc was not prepared in this instance to rely on mere speculation.

He observed that foreseeable expenses were covered by Medicare for medical issues and the NDIS package for personal needs.

As she was in receipt of social security benefits, she will – so held the court – never be affected by unemployment and had no assets of value that might be lost or destroyed.

All “current needs are being met and there is no reason to think that that will change,” ruled the judge.

Having failed to establish she had received inadequate provision -given her immediate needs and future needs were satisfied – her claim was dismissed.

The court’s reasoning may appear somewhat callous cold or crude. Other cases with similar facts have resulted differently. A further provision was made for a disabled child has been approved where need – over and above available benefits – has been demonstrated.[1]

Maria Oliveria by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130 Read case

[1] Abrahams v Abrahams [2015] QCA 286

source https://qldestatelawyers.com.au/disabled-child-already-has-proper-maintenance-and-support-from-ndis/