FOLLOWING a recent health scare, Peter opens the Notes application on his iPhone and creates a document entitled “last will”.
The note appoints his brother William as his executor, gifts his house and contents to his brothers and after some monetary gifts to friends and family, gifts the balance of his bank accounts to William.
The note contains numerous typos, includes profanity and some words appear to be missing.
The note is not “signed”, but includes Peter’s initials at the end of the “document”.
William seeks to obtain a grant of probate in relation to the note, with a view to acting as executor and receiving the bulk of Peter’s estate.
The case proceeds to determination in the Supreme Court of NSW but William’s application ultimately proves unsuccessful, with the trial judge ruling that the note was nothing more than a working draft.
William appeals the decision and the matter is heard in the Court of Appeal.
This time, before three judges.
A further hearing is conducted and the Court’s decision is handed down a month later.
The Court rules that it has the power to dispense with the usual requirements, that a will must be executed in the presence of two witnesses.
The Court decides that Peter’s abbreviated initials at the end of the note are sufficient to constitute a “signature”.
The Court hears evidence that missed call notifications and text messages may have been deleted after Peter’s death, but rules that there is no evidence to infer that any alterations to the note had been made.
It places substantial weight on evidence that Peter stated after composing the note that he had “finalised his will”.
The Court of Appeal ultimately finds that Peter intended the note to operate as his will and grants probate to William on the basis that the note constitutes a “valid informal will”.
If Peter had made a formal will with the assistance of a competent solicitor, the massive legal costs involved in two court cases could have been completely avoided.
For information, email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law, at manny@tblaw.net.au, or call(02) 66 487 487.
This fictional column is not legal advice.
By Manny WOOD, Solicitor
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