Mother’s death bed regret falls short of a valid will

Many an attempt to make what appears to be a will unconventionally or informally falls short of a valid will because it does not meet minimum legal requirements.

Unfortunately this was the case in relation to the estate of Erika Kaegi-Fluri who – when she died – was survived by her only daughter, Juliana Wool.

In her first will made in December 2013, she left the whole of her estate to Juliana.

Juliana and her husband had a tumultuous falling out with Erika in 2017 – that lead them to sue her – over the financial arrangements they had made for Erika to reside with them in Cairns.

The ensuing litigation eventually resolved, but not the disaffection that it brought.

Erika moved back to Mackay to live out her days quietly in a retirement village.

She made a new will in 2018 and a further final will in 2020.  Juliana’s name appeared nowhere as beneficiary in either document both of which were accompanied by a statement of Erika’s reasons for leaving no benefit to her daughter.

The last will bequeathed the estate in one-third shares to the RSPCA and two friends, Micael Johannsson and Adam Anderson.

Shortly after Erika’s death in July 2022 in Mackay, Charles Marino – her executor – applied for it to be admitted to probate.

Julia intervened however, claiming there was a subsequent will.

A note had been found in Erika’s bedside drawer.  The note appeared to state Erika’s testamentary intentions, leaving her estate to Juliana.  English was not Erika’s first language, but the intention seemed quite clear.

The note read:

“DEAR JULIANA

I AM CHANGING MY WILL!

KIM ADAM AND MICAEL HAVE ABANDEND ME.  RSPCA LET ME DOWN.

I LEAVE THE HOUSE AND ALL MY MONEY TO YOU JULIANA. I GO TO HOSPITAL NOW.  WHEN I GET BETTER I MAKE A NEW WILL WITH A LAWYER.  NO MONEY MUST BE PAID TO RSPCA, MICAEL OR KIM AND ADAM.  I CANCEL THE CAIRNS WILL

SORRY MY HANDS GETTING SORE.

I LOVE YOU VERY MUCH YOU ARE MY ONLY DAUGHTER YOU ARE ALL I HAVE NOW.

I WRITE THIS LETTER IN CASE SOMETHING HAPPEN TO ME.  SORRY I AM VERRY TIRED.

I CONTACT YOU FROM HOSPITAL.

I LOVE YOU MORE THAN ANYTHING IN THE WORD!  YOUR MOTHER,

[…Erika’s signature…]

Mackay 6.6.2022”

The note appeared to be an informal will, and so Juliana asked the Supreme Court to admit the note to probate as Erika’s last will.

To prove the note as a valid informal will, Juliana needed to be able to convince a judge that the document embodied her mother’s testamentary intentions and by some act or words, had demonstrated it was to operate as her will of itself.

The matter came before Justice James Henry in the Supreme Court of Queensland at Cairns.

The judge was troubled by evidence that Erika may have had undiagnosed dementia; her health issues just prior to going to hospital may have affected her mental capacity to make a will; and Erika was emotions could fluctuate with her mood.

He concluded that the note “at best provides some support for an inference Erika intended it to operate her will”. That said, “it provides at least equally strong support for the inference Erika merely intended the note to inform her daughter of her regret and change of heart and her plan to reflect that by making a new will”.

Juliana failed in her attempt to have the note declared to be a valid informal will.

Despite that, Juliana’s cause is not entirely lost as she has a pending family provision claim contesting her exclusion from the 2020 will, which her mother’s note will likely go a long way to support.

Wool v Marino [2024] QSC 89 Henry J, 14 May 2024

source https://qldestatelawyers.com.au/mothers-death-bed-hostility-regret-falls-short-of-a-valid-will/

Armchair notepad memo ruled to be a valid will, just

Valid wills can be made in unconventional and informal ways even by video, notepad memo or even on the back of an envelope.

That said, the risks of departing from the strict requirements of a formal will are enormous and the expense to which an estate can be put to prove validity, equally huge.

Consider the case of Ken Young who died in August 2022 – at age 85 – without any known will.  Ken was divorced, had no children and his closest relatives were his niece and two nephews.

After his death, niece Anthea located a notebook on his armchair in which he regularly made notes.

Three pages of his notebook contained instructions that read like a will and were headed “Consider this my will”.

The pages contained instructions for the distribution of all of his possessions and money which was all to go to Anthea.  He also specifically noted – with reasons for this decision – that he did not want any benefit to go to his nephews.

To get the benefits the pages appeared to bestow upon her, Anthea needed to convince a judge that the document – which was not signed with usual formalities of a formal will – purported to state Kenneth’s testamentary intentions.

Ken had signed each of the 3 notebook pages – exactly when was unknown – but there has been no witness to his signature.

If the notepad was held not to be a valid will, Ken’s estate would pass according to the laws of intestacy in equal shares between Anthea and Ken’s nephews.

Naturally the nephews were given notice of Anthea’s application to the court but did not contest her claim the NSW Supreme Court.

Anthea was able to convince Chief Justice in Equity David Hammerschlag that the notepad was indeed an informal will because the notepad pages had been written and signed by Ken and showed he intended the notes to form his will by the use of the introductory words, “Consider this my will”.

Further, the pages gave testamentary instructions, namely to give his estate to Anthea and to exclude his nephews.

Informal notes can be declared valid, but the process of having them declared to be lawful is fraught with uncertainty. Professionally drafted wills the anxiety and cost of court applications that are necessary to determine the legitimacy of something done informally.

The Estate of Young [2024] NSWSC 569 Hammerschlag CJ in Eq, 10 May 2024 Read case

source https://qldestatelawyers.com.au/armchair-notepad-memo-ruled-to-be-a-valid-will-just/

Disinherited step-children have modest win after tragic rupture

Can a parent successfully disinherit children or step-children who allege sexual abuse against them, a crime of which they are subsequently acquitted by a court?

Adam Fornari died on 13 August 2022, aged 58. His assets – the net value of which was just in excess of $1,000,000 – consisted in the main, of two farm blocks of 670 acres near Mudgee in New South Wales.

He had been in a 20 year relationship with Karen Hibberd until December 2019. Karen’s three infant children from a prior relationship – Kirt, Kimberley and Kyle then aged 7, 4 and 2 – began living with the deceased at the start of the couple’s relationship.

The family remained together at Faulconbridge – in the Blue Mountains west of Sydney – with Adam present and involved in the bringing up of the three children for the whole of their childhood in the absence of their biological father.

The couple purchased the Mudgee farms in 2003 and the family holidayed there regularly.

Kimberley left school at 18 and had three children from 2 relationships and by 2019 she, her 3 children and then partner Wayne moved in to the Faulconbridge home.

Kyle and his child and his partner Taylor and her child also moved in in October 2019.

Kirt also lived at the property, sleeping on the couch. So crowded wad the home – with Kimberley’s two eldest children sleeping in the main bedroom – that the only place for Adam to sleep was in a pine log cubby house in the backyard.

Those arrangements put Adam’s relationship with the other occupants – none of the adults among them having jobs – under severe stress.

In December 2019 Kimberley revealed to her mother that she had been sexually abused by Adam from age 6 until she was 12. That bombshell lead to Adam’s arrest for crimes of which he was ultimately acquitted at trial.

Unsurprisingly, his relationship with all of his step-children came to an abrupt end and they never spoke again.

So did his relationship with Karen with whom he reached a property settlement in August 2021 transferring the Faulconbridge residence to her. Adam received the two farm blocks and a portion of Karen’s superanuation.

Adam’s life went downhill from there.

His health took a turn for the worse, he lost his job and the day before he was to move into the farmhouse it mysteriously burned to the ground.

His sister Debra Wright – a full time police officer with relationship problems of her own – provided moral support and spent her own money to assist with legal costs and other expenses he couldn’t afford to meet.

She also regularly did his grocery shopping and prepared his meals. Adam was in fact, emotionally and financially dependent on her.

For that reason, his will of March 2022 left his whole estate to her.

All three of the stepchildren challenged the will in the NSW Supreme Court and sought provision be made for them out of the estate.

Kirt’s claim was resolved prior to the trial and so the court was left to consider what provision if any, should be made for Kimberley and for Kyle.

Debra accepted they were eligible to seek a provision as – although they were no longer stepchildren – they had been part of the deceased’s household and had been financial dependents.

Kimberley and Kyle had though to prove the factors in their favour, that warranted a provision being made.

Justice James Hmelnitsky KC agreed factors had been established – in that they had grown up in Adam’s household; he had been their father figure; he had been in a long term relationship with their mother; they had little if any contact with their biological father; and the family home and farm blocks had been co-owned by the couple – that warranted their applications for provision.

His honour then turned his mind to whether they should each receive the $200,000 they claimed from the estate despite their total estrangement from the deceased.

Debra argued that no provision should be made given the catastrophic allegations of sexual abuse that destroyed the relationship and resulted in the family rupture. Their stepfather – she asserted – had no longer, any moral duty to provide for their needs as adult children of a former partner.

Justice Hmelnitsky agreed.

“There is real doubt about whether the community would expect the deceased to make any provision for the maintenance of Kimberley and Kyle in his will,” he observed.

They were after all adult children of a former partner, estranged, and the deceased had already “done more than what society would ordinarily expect”.

Also relevant was that the estate had been left to his sister Debra in no way to punish the stepchildren but rather, to reflect his “genuine and heartfelt affection for his sister, whose unquestioning support he understandably wished to recognise”.

Kimberley and Kyle were nevertheless held to be entitled to some small provision for two reasons. First, the extent of the historical connection between them and the deceased as their parent for virtually all their childhood and second because there was no evidence by which Kimberley could be blamed for her unproved allegations and Kyle could not be blamed for siding with his sister.

Thus, although the estrangement caused a “significant weakening of the moral obligations”, it did not entirely negative the deceased’s obligations.

The judge ordered Kimberley receive $50,000 and Kyle $40,000. Kimberley received more as she was found to have greater financial need.

Neither award would give them financial independence, but the judge’s view was that the deceased had no obligation to achieve that for them.

The question of costs was left for another day. The amounts ultimately payable to Kimberley and Kyle may in fact end up being reduced by costs orders, particularly if Debra had offered at any time to pay them more than what was ultimately ordered.

Note that in Queensland, neither Kimberley or Kyle would have been eligible to seek any provision as their entitlement is deemed to have ceased when their mother’s relationship with the deceased ended – before his death – at which time they ceased to be his stepchildren.

Wilson v Wright; Wilson v Wright [2024] NSWSC 519 Hmelnitsky J, 7 May 2024  Read case

source https://qldestatelawyers.com.au/disinherited-step-children-have-modest-win-after-tragic-rupture/