Risk Ahead

Generally, for a Will to be valid it needs to be signed by a Willmaker (testator) in the presence of two witnesses, who should also sign at the same time. These witnesses shouldn’t be beneficiaries under the Will. However, in NSW, the Court may dispense with this requirement if the Court is satisfied there is a document that the Willmaker intended to be their Will.

Bell v Crewes [2011] was such a case. The deceased made a valid Will in 2004, leaving a 9% interest in a house and 55% of his estate residue to his wife, with the other interest in the house and residue to his two sons.

In 2009, the deceased and his wife, a solicitor, discussed each making a new Will “mirroring their requirements” with the deceased increasing the benefit to his wife to a 27% interest in the house and 100% of the residue. The wife prepared the new Will for the deceased, and in early October 2009, the deceased said to her, “I have read the new Will – that’s what we want – that’s it.” The wife said to the deceased, “We will need to have it signed.” He said, “Yes.” The deceased then died shortly after, without having executed (signed with witnesses) the new Will.

The Court didn’t accept that the words used by the deceased indicated that it was his intention that the new Will should be operative as his Will from the time that he spoke the words, but the Court only accepted that the deceased was happy that the document prepared by the plaintiff (that is, the wife) accurately expressed his testamentary intentions. The Court deemed that both the deceased and his wife understood that the Will would need to be signed, and he acknowledged the necessity for its signature, though he did not sign it.

We estimate the deceased’s failure to execute the draft Will unfortunately cost his wife many hundreds of thousands of dollars, and his failure cost his Estate well in excess of $100,000 in legal costs.

The lesson from this case is if you’re not in a position to execute a Will with all the proper formalities, at the very least you should ensure you confirm and/or sign the document that has been created and contains your testamentary intentions, to operate immediately as your Will.


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