Curse of the Post Office Will

 

The ‘Curse’ of the Homemade Will

Master Sanderson, Rogers v Rogers Young [2016] WASC 208 stated:

“On numerous occasions when dealing with so-called homemade wills, I have observed they are a curse.

 

Homemade wills which utilise what is sometimes known as a ‘will kit’ are not much better. This case proves the point. The disposition effected by the will is not complicated and no doubt the testator had clearly in mind what she intended to achieve.

 

But the way the will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation.

 

If the will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.”

Rogers v Rogers Young [2016] WASC 208

In this case, Kathleen Rogers loved her daughter, Alexandra.

Mum’s Will left everything to Alexandra. Mum died of cancer when Alexandra was not yet 18. The Estate was intended to be held in trust until Alexandra was 25. Unfortunately, Mum’s newsagent Will Kit did not agree. The Will was ambiguous as to what ’25 years of age’ meant.

The penny dreadful Will kit cost the daughter $200,000. This was $100,000 to attack a Will and $100,000 to defend. The estate pays it, so 18-year-old Alexandra lost out here. Mum could have gone to our law firm’s website and built a professional Will.

The daughter not wanting to wait another 7 years for her money is understandable. Save your loved ones the headaches and stress.

Are accountants and financial planners allowed to build Legal Consolidated Wills online?

Yes.

Rogers v Rogers Young shows the problem of non-lawyer-prepared Wills:

• 32% tax on superannuation going to adult children
• Your assets are lost if your children go bankrupt after you die
• Uncertainty as to what words and clauses in the Will mean
• Expense and time going to Court to interpret the Will
• The risk that the Court interprets the Will so that all parties lose
• Risk of partial intestacy. So that the State government’s intestacy rules prevail
• In-laws, rather than your children, get the assets in your Will

What is an informal Will?

An informal Will is the last Will of the dead person. But it is faulty. It is often a homemade Will. Common problems with homemade Wills:

1. No residuary beneficiaries
2. Witnesses signing in different coloured ink
3. Will is printed back-to-back
4. The executor is dead and there are no backup executors

While expensive, you may be able to ‘prove’ these faulty post office Wills.

How do you fix an informal Will after you die?

This is expensive. Someone starts legal proceedings at the Supreme Court. The Court wants to know what the dead person intended for the post office Will to be a valid Will.

This often takes several witnesses and a few days in Court. With the preparation time, a day in court costs about $35,000. And you may never get the Court Order. You may never be able to prove the post office Will in ‘solemn form’.

Evidence to prove your faulty Will is still valid

What evidence does the Court look for? This is another expensive process.

Was the dead person aware of the formal requirements to make a Will? One would have thought if the dead person knew then why did they muck up their Will? And leave this mess behind for their loved ones?

What if the Will is not signed? Or do the two witnesses do? Is that evidence that the Post Office Will is not intended as a Will?

This is because the Will maker knew that this was not a Will. After all, it was not signed as a Will.

How did the dead person treat the informal Will? Did he tell his family about it? Did he let the executors know where it is stored?

Time is a factor. The older the informal Will, the less likely the Court sees the document as a Will.

This is how to sign a Legal Consolidated Will in a hospital or isolation.

Are suicide notes, word documents and recordings valid Wills?

All of these are a problem. And leave a mess behind.

Consider Gray v Gray (2015). The Court is disgusted that a non-law firm prepared Will:

“All of this could have been avoided if the Testator had consulted a lawyer and signed off on a Will which reflected his wishes. There is no question but that engaging the services of a properly qualified and experienced lawyer to draft a Will is money well spent.”

The case of Boettcher v Driscoll (2014) is no different. Here the handwritten document records an amendment to a properly prepared Will. (These are called codicils. Codicils are thankfully rare these days. Better to do a new Will. )

The Codicil allows a beneficiary to “have use of the house for as long as he needs”. This is either a “Life Estate” or the weaker “Right to Reside“.

The Court finds that the document is indeed an “informal Will.” But it is void of uncertainty. The Codicil fails. The effect? The Will remains unaltered.

Costa v Public Trustee – suicide note held to be a valid Will

As to a suicide note, to highlight the complexities of informal Wills, the Court recognises that a person contemplating suicide may be able to use the note as a Will. Richardson Deceased (1986) 40 SASR 594 states:

“a compelling reason to make a will in order to dispose of his property as he wishes”

Providing that the language of the note is sufficiently clear, the Courts may consider the suicide note to be the deceased’s last will. Consider Costa v Public Trustee [2007] NSWSC 1271.

At first, the Court rejected a suicide note as a Will. Rather, the lower court said it was just a statement of “wishes and requests”. It is not a document with a ‘testamentary’ effect.

But the decision is overturned on appeal. The trial judge had not given sufficient weight to the “solemn unique occasion” upon which the suicide note was written. Therefore, the suicide note is confirmed as a valid will.

Are ‘mistakes’ in homemade Wills common? 

This is not an unusual case. There are a lot of problems that can arise from people creating Wills without legal support.

Sadly, several non-law firms are putting Wills online. It seems very alarming that they are offering legal documents without being a law firm themselves and having lawyers available for advice. Estate planning is an extremely serious and important process that experts should handle such as accountants, lawyers and financial planners.

The Law Society of New South Wales agrees. It states:

“Some people choose to make their own Will. We think that’s a mistake. Although writing your own may seem easy enough, the law around Wills can be complex.”