Even though will kits usually contain detailed instructions about how a will needs to be executed it is not unusual for these instructions to be overlooked or misinterpreted which can create real difficulties for the family after the person has died.
One of the problems that can occur is with signing and witnessing the will.
Even though will kits usually contain detailed instructions about how a will needs to be executed it is not unusual for these instructions to be overlooked or misinterpreted which can create real difficulties for the family after the person has died.
There are formal requirements for executing a valid will and if the formal requirements have not been met, then the document can only stand as a person’s will if the Court is prepared to exercise its power to dispense with the formal requirements. An application would have to be commenced with the Court to determine if the will can be made valid and this can be lengthy and expensive.
Some examples of situations where problems with signing and witnessing can come up with home-made wills include the following:
- A will kit form is filled out but not signed or witnessed.
- The will is signed by the will maker and two witnesses but there are alterations that have been made to the will after it was signed and witnessed.
- The will refers to a list setting out who is to receive what, but the list has been changed since the will was made and the list has not been signed and witnessed.
- The will was signed by the will maker and two witnesses, but one of the witnesses is a family member who is a beneficiary under the will.
In all of these situations there will be delay and additional expense which will usually come out of the estate of the deceased person, reducing the amount which can be given to the person intended beneficiaries.
An example of where the Court decided that a home-made will was not valid was in the case of In the estate of O’Dell [2010] NSWSC 678. In this case Deborah O’Dell once attempted to make, and twice attempted to change, a home-made will. She died on 28 November 2008 and on 25 June 2010 the Supreme Court decided that all her efforts had failed.
The problem started when she was given a will form by a funeral director when she made a funeral plan. She filled it in by hand and she didn’t sign before two witnesses – she signed before one person and a second person later added her name as a witness. After the birth of her second grandchild Deborah changed the will by handwritten additions. Those additions created these potential problems:
- The changes were not signed, initialled or witnessed.
- An alteration provided that “money to be given evenly to LJOD, DJOD and invested till age 25”. There was no amount specified as “money”. LJOD and DJOD were not defined but were presumably her grandchildren.
- To a gift “of money: from Life Insurance” was added “$100,000 – put any extra” but nothing indicated the beneficiary of that gift or the meaning of “extra”.
About nine months before her death, Deborah made further changes which contained further problems.
The judge in the Supreme Court made these findings:
- The deceased intended the will form, without alterations, to constitute her will. This allowed for a dispensation from the formal requirements of two witnesses.
- The deceased did not intend either of the alterations to constitute her will.
- Because the alterations showed the deceased’s dissatisfaction with the original, unaltered will form, the alterations constituted a full revocation of the will contained in the will form.
- Deborah O’Dell died intestate, ie without a valid will.
In my next blog I will talk about the problems with identifying who gets what under the will.