Can you revoke a will with a file note?

From

A recent Tasmanian Supreme Court case considers this question: Wills can be revoked in a number of ways, typically by creating a later Will or executing a document to that effect in the same manner that a Will is signed.

Where the proper formalities for revoking a Will are not followed, the court can consider whether there has been an informal revocation of a testator’s Will.

In the case of Public Trustee v Bott [2017] TASSC 43, Westley made a Will through the Public Trustee on 26 March 1996. In February 2009 he attended the Public Trustee’s office and advised a Public Trustee employee that he would like his Will ‘cancelled’. The employee simply wrote Westley’s request in a file note that “he would like his Will cancelled, has not made a later Will but would like to just keep it up in the air for the moment”.

The file note was kept with Westley’s records and the employee did not discuss the matter with any solicitor or any other employee as to whether the file note was a sufficient step to take for Westley to revoke his will.

When Westley passed away the Public Trustee sought clarification from the court as to whether the Will was valid or whether Westley died intestate.

The court looked at three things:

  • whether there was a document;
  • whether that document embodied the testamentary intentions of the deceased; and
  • whether the deceased intended the document to constitute a revocation of his Will.

Upon consideration of the file note in detail, the court held that the file note was not sufficient to constitute a revocation of Westley’s Will as there was no evidence that Westley knew it had been created or existed.

At best, the court found that Westley knew there might be an update of the Public Trustee’s records.
Whilst the courts do have the power to consider whether a document constitutes a revocation of a formal Will, in this case the particular file note was not enough.

To ensure certainty that a testator’s wishes are carried out when they pass away, a testator should always seek our legal advice, have prepared the necessary documents, and have the document properly executed in accordance with the formal requirements of the relevant legislation. A testator should never leave the distribution of their assets ‘up in the air’.

by Natasha Ng, Solicitor

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