Can a completed life insurance nomination form be regarded as a valid will?
Consider the circumstances of Ron Selig who died in November 2022 in a farm accident whilst working on a property near Longreach at the edge of outback Queensland.
He lived in rented accommodation at Buderim at the time. His estate consisted only of a $150,000 life policy with Australian Seniors Insurance (“ASI”), furniture and personal effects of modest value.
Ron had married his first wife, Vicki Garvie in 1974. They had two children together, Aaron and Melinda. Their marriage ended in divorce in 1995, but they remained good friends.
He then married Janna in 1996. They also had 2 children together, born in 2002 and 2007. Ron and Janna separated in 2008, but they had never formally divorced.
His last formal will made in November 2003 named Janna the executor and beneficiary.
Her application for probate of that will was dismissed by the Queensland Supreme Court Court in June 2023 under opposition from Aaron and Melinda.
The pair instead proposed that documents Ron had completed in April 2021 in connection with his ASI life policy – a “My Wishes” form and a “Nomination of Beneficiaries” form – should be considered as his last will.
The deceased had completed the forms with the assistance of first wife Vicki, who since 2014 visited him at least 2-3 times a week from her home at Nambour.
The court heard that Ron had called Vicki in April 2021 and asked her to come over “to help him with something”.
He already had the two insurance forms laid out on a table when Vicki arrived and requested her help to “write his Last Will and Testament”.
He explained he wanted Vicki her to write on the Nomination of Beneficiaries form that their children – Melinda and Aaron – were each to be 50% beneficiaries of his life insurance policy.
Ron told her not to bother writing down anything about his furniture as it was worth nothing, and when the time came Melinda and Aaron could work out what they wanted to do with it.
Vicki read through each of the two documents with him and completed the answers as he instructed. The “My Wishes” form was completed with specific details regarding funeral arrangements, where his ashes were to be scattered, and who was to be told of his death.
She swore from the witness box that after completing the documents, Vicki read through them both out loud with him to make sure he could follow what had been written complied with what he had asked her to write. Ron then signed each document in her presence.
Melinda and Aaron first made claim against the ASI policy, which was refused because Ron had neglected to submit the Nomination form to ASI before his death.
As observed by Justice Lincoln Crowley, had the form been received by the insurer before the deceased’s death, there would have been no need for the court proceedings.
In opposition to the children’s claim, Janna contended that the two ASI forms were forgeries.
She argued it was “simply illogical” for Ron to have signed them as they maintained a close relationship and had even reconciled. Ron had made no mention – she swore – of the insurance nomination or of any desire to benefit the children in any way.
Preferring Vicki’s “cogent, direct evidence”, the court rejected Janna’s assertions.
The judge accepted that Ron had told Vicki, Melinda and Aaron on separate occasions before he died that his “will” was in the top drawer of his bedside cupboard ie, the location in which the two insurance documents were found after his death.
Justice Crowley held that the content of the two insurance documents were the expression of his testamentary intentions and that Ron intended them to be his last will. That conclusion was even more compelling – so held the judge – given Ron knew the life policy was his only significant asset.
His honour also was satisfied that Ron had the necessary capacity to make a will at the time the documents were signed, noting that the death certificate and coroner’s report “do not indicate any illness or condition that would suggest or raise any suspicion of the lack of capacity”.
He ordered that the insurance documents were the last valid will of the deceased, and Melinda and Aaron were appointed as administrators of the estate which they were to share equally.
The court might perhaps have come to a different conclusion if the estate had other substantial assets that were not dealt with by the nomination form. The decision however shows that careful consideration needs to be given to any documents found that give some indication of how a deceased wishes their estate to be distributed.
Selig v Selig [2024] QSC 189 Crowley J, 26 August 2024
source https://qldestatelawyers.com.au/life-insurance-nomination-found-to-be-an-informal-will/
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