October 2011

Unsigned wills ? the NSW law has not changed

 KEY POINTS
  • Willmakers should be asked if a document is to operate immediately as their will.

This bulletin looks at tworecent cases relating to the power of the NSW Supreme Court under s.8 of the Succession Act 2006 (NSW)to dispense with compliance with wills formalities and recognise an informal testamentary document as forming the deceased's last will.

The first case is Bell v Crewes [2011] NSWSC 1159. In this case, the deceased and his wife (who was a solicitor by profession and the plaintiff) agreed in 2009 to make new wills which would effectively \"mirror each other's requirements\". The wife prepared a new will for the deceased, showed it to him some time in the week between 4 and 11 October 2009. The deceased said to his wife, \"I have read the new will ? that's what we want ? that's it.\" Importantly, the deceased and his wife both agreed that they would need to have the will signed. The deceased died suddenly on 17 October 2009 without having signed his new will.

The issue was whether the deceased's unsigned will should be admitted to probate pursuant to s.8 of the Succession Act 2006.

Justice White noted that s.8 replaced s.18A of the Wills, Probate and Administration Act 1898 (WPA Act). While the wording of the sections was not exactly the same, it was held that the principles which applied to the interpretation of s.18A also apply to the interpretation of s.8.

The court noted that there was case law in other states dealing with legislative provisions similar in terms to s.8 where unsigned wills had been admitted to probate where they had been clearly approved by the willmaker. However, the Court decided to follow previous NSW case law requiring that the deceased must have intended the document in question \"without more\" to operate as his or her will. The deceased must intend the document to have present operation as his or her will.

Justice White refused to admit the unsigned will to probate because the evidence showed that while the document contained his testamentary intentions, it was not intended by the deceased to operate as his will until he and his wife signed their \"mirror\" wills.

The second case is National Australia Trustees v Fazy [2011] NSWSC 559. It involved the difficult issue of where testamentary intention changes in relation to a document.

After the death of her husband, the deceased wrote on a page in her notepad what appeared to be instructions for a new will. She did not sign the notepad page. The deceased also made an appointment to see her solicitor on 18 August 2009.

The deceased became ill and was admitted to hospital on 16 August 2009. She took the notepad (in a bag) with her to hospital. The deceased was seriously ill and \"end of life\" issues were discussed with the deceased and her next of kin. It was around this time that the deceased said to her nephew:

\"In my bag there is a notebook stating my wishes which must be carried out. This cannot be contested.\"

The deceased died on 17 August 2009. The issue for the court was whether the unsigned handwritten page in the notebook could be admitted to probate under s.8 of the Succession Act 2006.

It was noted by Windeyer AJ that while there were some differences from the wording in the previous s.18A of the WPA Act, the requirements, so far as this case was concerned, were the same. The test established under s.18A applied: did the deceased intend the unsigned handwritten page in the notebook \"without more\" to form her will?

It was also noted by Windeyer AJ that it was not an easy case to decide. However, he admitted the document to probate under s.8 because the evidence showed that the deceased changed her intention in relation to the document when end of life issues were discussed - she intended the unsigned handwritten page to form her last will.

The message

The lesson from these cases is to ensure that with testamentary documents, willmakers are given the opportunity to confirm or sign the document to operate immediately as their will (even if it is contemplated that a more formal will is to be later prepared and signed).

 

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.

Gerard Basha