Issue: 59
Sent: 16-10-2006 09:34:32
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Signing a will easier - Tony Crilly
Succession Act Execution Requirement
There are a couple of cases recently worth cosnidering, regarding a review of the procedures adopted for the signing of a Will, alteration or revocation of the Will.
In the Estate of Ashley David Schwartzkophf [2006] SASC 31, a draft Will which was not seen or executed by the deceased, was submitted to Probate by his widow being the executor and sole beneficiary.
The widow had met the deceased on the internet in May 2000 and moved to Australia in July 2004. She married the deceased in September 2004 and the deceased died some four months later. Under Intestacy, the only persons entitled were the widow and the deceased’s son who was aged 17 years (he was born of the deceased’s first marriage). Justice Grey referred to the statutory provision that for a document to be admitted to Probate, a Court must be satisfied that the document expresses the deceased’s testamentary intentions and be satisfied that the deceased intended the document to constitute their Will, even though it had not been executed with the statutory formality. (Refer Section 12(2) of the South Australian Wills Act).
After looking at a number of cases, His Honour decided that this section was intended to remedy certain circumstances and its purpose was to avoid the hardship and injustice which so often arises from the strict application of the formal requirements of a valid Will.
He concluded that the intention of the deceased was for the estate to be shared equally between his son and the applicant, and the applicant as trustee over the son’s share. He was not satisfied that the draft expressed those intentions nor that the deceased intended the draft to constitute his Will. The draft Will was not admitted to Probate and the widow was not appointed pursuant to that.
Another case also looked at these strict rules. Snape -v- Gibson re Estate of Paul Francis Snape [2006] NSWSC 829 was decided on 14 August 2006. The wife of the deceased made an application for a document to be admitted to Probate as follows:
“I, Paul Snape, leave everything, property, goods, et cetera, to my wife, Dianne Snape”.
The deceased signed the document and printed his name beside his signature as well as the date 16 September 2004. There were no witnesses to the document. He died on 17 September 2004.
Justice Windier declared that for a document to be admitted to Probate, there were three requirements:
1. A document;
2. Testamentary intentions expressed in the document;
3. The deceased intention that the document be a Will.
His Honour held that there was no doubt that the first two requirements had been met. He also decided that the deceased intended the document to be his Will because the document was relatively formal in its terms and it was not a document of instructions. Further, the signing and the printing of the name and the dating supported the conclusion that the deceased intended the document to be his final Will.
As a result, the document was admitted to Probate, his wife, Dianne, was appointed to administer the estate as executor and received all of the estate as sole beneficiary.
As you can see, the issues of getting a valid document can be ‘hit and miss’ if you do it yourself. Specialist advice is always the best solution
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