Where There’s A Will, The Way May Be Questioned

WORDS: Brendan Nyst PHOTOGRAPHY Supplied

Most people understandably assume that putting their affairs in order, and ensuring that their final will and testament is firmly in place, automatically ensures their wishes will be strictly met once they finally shuffle off this mortal coil. They hope to rest peacefully in the quiet confidence that their loved ones for whom they wish to have the benefit of their worldly estate, will, in fact, be the ultimate beneficiaries.

Unfortunately, like the best-laid schemes of mice and men, testamentary intentions can sometimes go astray. The allure of valuable assets – and in turn the promise of a more secure lifestyle – sometimes leads to family members, and others, scrapping with each other to ensure they get as big a slice of the testamentary pie as they can get their hands on.

In this day and age, it’s surprising just how often courts hear claims from one or more family members that, before finally falling off their perch, the dearly departed solemnly confided to that particular family member, and to absolutely no one else, that contrary to the testamentary intentions expressed in the will, the deceased actually meant to leave the bulk of their assets to the witness.

Unsurprisingly, perhaps, the courts invariably take a very cautious approach to such evidence.

However, family disagreements of this kind can arise in a myriad of ways. Perhaps the will’s written text contains some palpable ambiguity as to precisely what the deceased’s intentions really were, or the wording of the will may render it demonstrably unclear or incomplete. There may be several wills, all signed shortly prior to the death, raising potential questions of duress or undue influence, or even mental incapacity, on the part of the testator at the time of signing. Or the problem could be that the will just wasn’t signed at all.

I’ve acted in a number of estate disputes in which a purported final will was drafted shortly before the death of the testator, but never signed. Did the deceased have a change of heart at the last minute, or did they simply pass before they got the chance to execute the will? Unfortunately, uncertainty invites opportunism, but it may also potentially result in outcomes that were not intended by the recently deceased.

One such case was decided not so long ago in the Supreme Court of Queensland. An Ipswich woman had applied to the court to have her husband’s last will recertified to name her as the sole beneficiary of the estate. The couple had only been married for 2 days at the time of his death, and her husband’s will (executed just one month earlier) was incomplete. The will appointed his widow as executor, but unfortunately – perhaps because it was a DIY job drafted by the testator himself – its wording was entirely unclear as to exactly who the deceased intended to receive the bulk of his assets.

The widow sought to argue that her husband had intended to leave the entirety of his estate to her and, to prove it, she gave evidence of numerous conversations she had had with him prior to his death, in which he made those intentions quite clear. She also led evidence to the effect that the deceased’s children had become estranged from the testator and argued that, for that reason, he would not have wanted them to share in his estate.

As compelling as such evidence may have been, the presiding judge was not convinced it was enough to establish the deceased’s testamentary intentions and ruled that the estate should be divided according to the rules of intestacy (essentially dividing all of the property between the widow and deceased’s adult children).

So, it turns out that in death, just as in life, things can get a little messier than you intended. But if, like most of us, you’re keen to infuse at least some hope of prospective order into that potential chaos, a good start would be to ensure you have the will you want, with all I’s dotted and T’s crossed, duly witnessed and correctly executed, in black and white. That means thinking it all through carefully up-front, getting sound advice from a good lawyer as to how best to bring your true intentions to reality, then having your will professionally drafted, executed, and safely stowed away.

Hopefully, that will save those most dear to you a whole world of unwanted pain after you’ve gone.