The costly consequences of failing to execute a Will

25 October 2018

The recent decision of the Supreme Court in Estate of Elzow [2018] VSC 498 highlights the importance of validly executing a Will.

Nina was a 91 year old woman who had migrated from Russia to Australia in the 1950’s. At the time of her death in 2016, Nina was a widow whose only child had predeceased her. Nina’s estate consisted mainly of her Hawthorn East property valued at in excess of $2 million.

Nina had executed a Will in 2010 appointing her friend Robin and her goddaughter Val as executors, and giving each of them a gift of $10,000. The remainder of Nina’s estate was to be distributed equally between five of her relatives living in Russia and Ukraine. In addition to being Nina’s goddaughter, Val was also Nina’s primary carer.

In the months before her death, Nina instructed her trusted solicitor, Mr Reichman, to change her 2010 Will. Nina had known Reichman for 20 years, and they spoke in a mixture of Polish and English.

Nina instructed Reichman that instead of her five relatives sharing in the property equally, each of them was instead to receive the sum of $180,000. Any remaining monies left after the sale of the property were to be given to Val.

Reichman prepared Nina’s new Will shortly thereafter, and then discussed its contents with Nina over the phone. Reichman went over the new clauses in the Will and suggested that the gift of $10,000 to Val should be removed because Val was to receive the residue of the estate. However, despite Reichman’s suggestion, Nina confirmed that the new Will was exactly what she wanted.

Nina asked Reichman to attend the nursing home where she was a resident so that she could execute the Will. Reichman said that he was busy and preparing to go overseas, and suggested that another solicitor could attend instead to execute the Will. Nina said she didn’t want to do this as she felt comfortable with and trusted Reichman and didn’t want to be ‘cheated’ by having another solicitor attend and witness her signing. Nina also said she was comfortable with the new Will as ‘settled’. Reichman said he’d call her when he was ready to attend the nursing home.

Unfortunately Nina died before the new Will was executed.

The executors sought orders of the court that the new Will be admitted to probate, notwithstanding that Nina:

  • did not see or read the new Will
  • being aware of the need to execute the new Will, had an opportunity to execute the new Will but did not do so

The law

Section 7 of the Administration and Probate Act 1958 (Vic) (Act): provides that:​

  1. ​1             A will is not valid unless:
  2. (a)          It is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and
    (b)          The signature is made with the testator’s intention of executing a will, whether or not the signature appears at the foot of the will;
    (c)          The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
    (d)          At least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other. 

The Supreme Court may, however, dispense with these formal requirements and admit a Will that has not been executed in accordance with section 7 of the Act.

Section 9 of the Act gives the Court power to admit to probate a document which is classified as an “informal will”. In admitting an informal will to probate, the Court must be satisfied that the person intended the document to be his or her Will, and may have regard to any evidence relating to the manner in which the document was executed, as well as any evidence of the testamentary intentions of the testator, including evidence of statements made by that person.

In order to admit an informal Will to probate under section 9, there are three requirements:

  • there must be a document
  • that document must express or record the testamentary intentions of the deceased
  • that document must have been intended by the deceased to be his or her will

Were Nina’s actions in declining to execute the Will when presented with an opportunity to do so, indicative of her intention that the new Will was not to be her final Will?

The Court concluded that although Nina knew she had to execute the new Will but failed to do so, it was not determinative. It was only one of the factual circumstances for the Court to take into account in determining whether Nina intended the document to be her last Will. Reichman’s evidence of his discussions with Nina were ultimately conclusive of her intentions the Will was exactly what Nina wanted, and she wanted Reichman to witness her signing because she trusted him and was fearful of others attending in his place.

Unfortunately for the beneficiaries of Nina’s Will, and in particular Val as the residuary beneficiary, the costs of the litigation would have been borne by her estate. Simply put, tens of thousands of dollars could have been saved had Ninaexecuted her last Will.

Our recommendations

If you already have a valid Will, review its contents every three years, particularly if your personal, financial or family circumstances change significantly.

Don’t hold off on reviewing draft versions of your Will and executing a final version. While Nina’s case shows that unexecuted versions of Wills may be admitted to probate, there is no guarantee the court will accept the document has your intended last Will. Moreover, the litigation that follows may result in significant delay and cost to your estate, causing your executors and beneficiaries considerable anxiety and stress at a time of grieving your passing.