DIY Wills are not the same as DIY Super

From

Brian Hor

The courts are littered with examples of ‘do it yourself’ Wills that have gone wrong. It doesn’t matter how simple you think your Will is – even smart people like a retired ANU Professors can and do get them wrong.

As a result of the ambiguities in the deceased’s Will, and notwithstanding that he was a retired professor of the ANU, the deceased’s ignorance meant that the executor was forced to approach the Supreme Court for guidance – resulting in a waste of time and estate monies, as well as causing unnecessary worry and stress for the poor executor. All this could have been easily avoided by having the will professionally drafted by a properly qualified and experienced estate planning lawyer.

The lesson to be passed here to even the most sophisticated would-be DIY will makers is that, unless you are a specialist estate planning lawyer, don’t make your own Will, because the old adage applies – ‘you don’t know what you don’t know’. Otherwise, there is a high probability that they will get it wrong – and simply end up imposing unwarranted anxiety and frustration (and legal expense) upon their loved ones at the worst possible time for them.

Take this example from the ACT Supreme Court case list – in the estate of Love [2017] ACTSC 5 which was decided on 13 January 2017, where the court was asked to provide advice to the executor of the estate of John Duncan Love who died on 19 June 2016, aged 73 years. He was divorced at the time of his death, left no partner and had no children. Probate of his will was granted on 1 September 2016, and at that point the gross value of his estate in the ACT was $5,139,015.12. The deceased also owned real property in New South Wales. At the time of decision, the estate had a gross value of approximately $5,500,000. Not a small estate by any means.

Yet the deceased, who was a retired professor at the Australian National University (the ANU), prepared his 2016 Will himself, without the intervention of lawyers. It was witnessed by two friends, each of whom was to receive a $50,000 gift under the terms of the Will. (Note – luckily for the two friends, the so-called ‘interested witness’ rule which states that a disposition of property, i.e., a gift to a beneficiary, is void if that beneficiary was a witness to the will, does not apply in the ACT, otherwise they would have just cancelled out their own gifts!)

In essence, the Will allocated $25,000 to meet testamentary and administration expenses and then made a series of monetary gifts totalling $3,900,000 in value – but said nothing about the remaining $1.6m balance of the estate.

On the face of it, this meant that the remaining balance of the estate would have to be treated as a partial intestacy – in other words, be treated as if there was no Will in relation to that balance, so that a set order specified by Schedule 6 Part 6.2 of the Administration and Probate Act 1929 (ACT) would apply to decide who received the balance. As it turned out, given that the deceased left no spouse, partner, children, siblings, parents or grandparents, the persons who would take on a partial intestacy would be the next of kin as defined in s 49C of the Administration and Probate Act. This would include the uncles and aunts of the intestate who survived the intestate and the issue of such an uncle or aunt who died before the intestate, being issue who survived the intestate. Otherwise, the Territory would be entitled to the balance of the estate. Problem here was that the executor was unable to identify and locate conclusively all of the beneficiaries.

So the executor went to the court and argued that it was unlikely that the deceased intended an intestacy. In this regard, it was argued that it was relevant that in preparing the Will, the deceased appeared to have had recourse to his previous Will dated 15 March 1989 (“the 1989 Will”). There were clear similarities in the wording, and in the formatting of the document. The 1989 Will contained a gift of residue, but the deceased had not included such a clause in his last will. It was also relevant that the value of the deceased’s estate was considerably in excess of the total of the monetary gifts stated in the Will. In this context, it was argued that it was likely that by clause 22, the deceased intended to confer a power for the executor to vary the amounts of the monetary gifts so as to exhaust the residue of the estate.

In considering the matter, the court took into account the following additional facts:

(a) The 1989 Will was prepared by a solicitor. It had the same general structure as the 2016 Will in that it provided for a series of gifts to identified persons or institutions. However, it contained a clause dealing with the residue of the estate, which was given to the deceased’s then wife Susan Mary Love.

(b) However, the deceased was divorced from Susan Mary Love on 15 October 1994.

(c) In November 2014 the deceased pledged a gift of $1.05 million over five years to the ANU to support scholarships known as the ‘Love Scholarships’. That was done by deed dated 19 November 2014.

(d) The 2016 Will is dated 14 February 2016.

(e) At about the time of making the 2016 Will, he specifically discussed with the executor named under the Will, what was to be done with any money that was left over after the specific gifts in his Will.

The statements included:

“I know that you will know exactly to whom and how I would like any extra to go. I have certain friends that mean a lot to me and you know who they are, so do as you feel I would like, to assist them even further.

I have been very generous to the ANU, and feel they have received the largest amount of my estate and probably enough. But I know how you feel about assisting others less fortunate, exactly the same way as I do, so if you see a need to add to this, please do so if there is sufficient, but I doubt that there would be as I have checked all my calculations.”

(f) Having regard to the terms of the will it is ambiguous or uncertain on its face and hence, pursuant to s 12B(b) of the Wills Act, it is open to consider ‘evidence, including evidence of the testator’s dispositive intention’.

(g) Having regard to the terms of the will and the evidence as to the deceased’s intention it is clear that the deceased did not intend that there should be a partial intestacy. Rather, he intended that any estate beyond that which he had specifically given by the monetary gifts in cls 4 to 20 and which was not required for the administration of his estate (cl 21) be dealt with by the mechanism contemplated by cl 22. That scheme is consistent with the substitution of the residue clause in the 1989 Will with the cl 22 mechanism in the 2016 Will.

So at the end of the day, the court agreed with the executor that she had the power to adjust the monetary gifts so as to use up any left-over residue of the estate, and therefore there would be no partial intestacy of the estate.

A win for the estate? Hardly! As a result of the ambiguities in the deceased’s Will, and notwithstanding that he was a retired professor of the ANU, the deceased’s ignorance meant that the executor was forced to approach the Supreme Court for guidance – resulting in a waste of time and estate monies, as well as causing unnecessary worry and stress for the poor executor. All this could have been easily avoided by having the will professionally drafted by a properly qualified and experienced estate planning lawyer.
The lesson to be passed here to even the most sophisticated would-be DIY will makers is that, unless you are a specialist estate planning lawyer, don’t make your own Will, because the old adage applies – ‘you don’t know what you don’t know’. Otherwise, there is a high probability that they will get it wrong – and simply end up imposing unwarranted anxiety and frustration (and legal expense) upon their loved ones at the worst possible time for them.

By Brian Hor, Special Counsel

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