In a recent NSW Supreme Court case, the intricacies of family dynamics and the consequences of a do-it-yourself Will came to the forefront. This case revolves around sons who took it upon themselves to help their mother draft a Will to prevent their sisters from inheriting from her estate. It is a stark reminder of the pitfalls of homemade legal documents. The sons failed to convince the court that their mother was aware of the contents of the Will, which led the court to declare that the mother died without a valid Will. Attwood Marshall Lawyers Estate Litigation Senior Associate April Kennedy recently joined Robyn Hyland for ‘Law Talks’ on Radio 4CRB to discuss the case and the need for involving an experienced estate planning lawyer when writing or updating your Will.
Summary
A New South Wales court has tossed aside a do-it-yourself Will after suspicions were raised over whether it reflected the deceased’s wishes, even though she was found to have mental capacity at the time of executing and signing the document.
The deceased woman was known to struggle with English and there was a serious question mark over her understanding of the contents of the Will, given that the witnesses to the signing of the Will did not appear at court for cross-examination.
The Will excluded the woman’s two daughters, while her three sons, who helped their mother complete the Will, stood to inherit the entire estate.
The case highlights the importance of seeking professional legal guidance when drafting a Will. While DIY Will kits and online Will templates may seem convenient and cost-effective, they lack the nuance and expertise that a solicitor specialising in Wills and Estates can bring to the table to ensure your wishes will be fulfilled and to reduce the risk of undue influence.
The consequences of a poorly drafted or invalid Will can be devastating, not only in terms of additional costs to prove that the Will is a true reflection of the deceased’s wishes, but also in causing irreparable family rifts.
The case: Wehbe v Giotopoulos [2023] NSWSC 827
Wadad Wehbe died on 10 February 2021, aged 68. Her husband died two years earlier and she was survived by her five children.
The Supreme Court of New South Wales had to determine whether a Will that Mrs Wehbe signed on 8 July 2020 was valid. The Will excluded her two daughters and left her estate to her three sons. The most significant asset at stake was a three-bedroom house in Punchbowl, Sydney.
The daughters argued that their mother died intestate (i.e., without a valid Will), and the estate should be shared equally by the five children in accordance with the rules of intestacy.
All three sons lived in the family home. Though they worked full time, they also assisted with the deceased’s household tasks, cooking, shopping, and transport to medical appointments.
The case did not focus on Ms Wehbe’s testamentary capacity at the time she executed the Will – she had been cleared by a doctor as “mentally fit” five days before signing it. Rather, the daughters challenged the validity of the Will because of the “suspicious circumstances” around its preparation, and because there was a real question about whether Mrs Wehbe knew she was signing a Will.
One of the sons purchase the Will kit and filled out the forms for his mother. The sons testified that their mother wanted the estate to go to them, in line with their late father’s wishes.
On the day the Will was executed, two of the sons apparently left the room as two-family friends then read out the contents of the Will to Mrs Wehbe. After a short time, the sons were called back into the room where they remained while she signed the document.
That evidence was uncorroborated because the witnesses never appeared for cross-examination.
In their defence, the daughters argued that their mother did not know or approve of the Will’s contents. They also claimed undue influence, pointing out that the Will template was bought and filled out by somebody who would benefit the most from the Will.
The decision
In his decision handed down 14 July 2023, Justice Rowan Darke dismissed the sons’ claim, refusing to grant probate on the DIY Will. Mrs Wehbe was deemed to have died intestate with the estate going equally to the siblings.
The judge found there was “no clear reason” why Mrs Wehbe would have wanted to exclude the daughters as beneficiaries to her estate. He said the sons purposefully downplayed the relationship between their mother and sisters, and that there were inconsistencies in their accounts and a lack of corroboration from other witnesses.
Under Section 6 of the Succession Act 2006, a Will needs to be in writing and signed by the testator, or somebody else in the presence of and at the direction of the testator. The testator needs to make or acknowledge the signature in front of two or more witnesses present at the same time, and at least two of those witnesses need to sign the Will in front of the testator.
In this case, there was no independent evidence of what happened during the preparation and execution of the Will. According to the decision, the sons lost because they failed to establish that at least two witnesses were present for the signing of the Will.
Justice Darke also found that the plaintiffs had not established that Mrs Wehbe knew and approved of the contents of the Will.
He said that Mrs Wehbe had been frail, in declining health, and highly dependent on her three sons with only a very limited ability to read and understand written English.
According to evidence, she had a conversation with her doctor a few days earlier discussing the necessity of a power of attorney, rather than a Will.
The judge put weight on Mrs Wehbe’s vulnerability, the close involvement of the sons in the preparation of the Will and the fact no solicitor had been involved. There was also a question as to whether Mrs Wehbe truly understood she was making a will or a power of attorney.
His Honour did however rule out any undue influence. He said that “suspicion remains” over whether Mrs Wehbe was tricked into signing the Will, as she may have thought it was a power of attorney in favour of her three sons. However, he did not find that any of the sons had acted violently, or in a domineering manner, towards their mother.
The dangers of DIY Wills
A Will Kit can be bought from post offices, newsagents, or downloaded from the internet. However, they are unlikely to be suitable for your individual circumstance and cannot give you or your estate the protection that a professionally prepared Will can. Online Wills and DIY Will Kits are also far more likely to be challenged in the courts after someone passes away, potentially jeopardizing your legacy and the well-being of your loved ones.
How and when a Will is executed is a vital part of the process. In many cases, people do not execute the document correctly and it is not until the testator has passed away that it is revealed the Will has been signed incorrectly, or in some cases not at all.
When a Will is prepared by an estate planning lawyer, there is a presumption that the Will has been properly executed – usually ruling out any allegations of suspicious circumstances around knowledge and approval.
Moreover, DIY Wills often lack the legal sophistication required to account for complex family dynamics. Lawyers who specialize in estate planning can tailor your Will to your specific circumstances, ensuring that every aspect of your estate is addressed. This goes beyond what generic templates or kits can offer, safeguarding your wishes and your family’s future.
Attwood Marshall Lawyers – helping minimise the risk of undue influence when constructing a Will
Attwood Marshall Lawyers boasts a specialized team who practice exclusively in estate litigation, estate planning, and estate administration.
If you have concerns about the legitimacy of somebody’s Will, it’s crucial to seek immediate legal guidance. After the individual passes, there is only a brief window that exists to take the necessary steps for challenging the Will’s validity. Navigating this intricate process requires the expertise of a lawyer well-versed in this complex area of law.
If you require advice concerning the validity of a Will or a dispute over an estate, please contact our Estate Litigation Department Manager, Amanda Heather, on 07 5506 8245, email aheather@attwoodmarshall.com.au or phone 1800 621 071 to find out what steps you need to take action.
To discuss your estate planning needs or take advantage of our free 30-minute estate planning review, contact our Wills and Estates Department Manager Donna Tolley on direct line (07) 5506 8241, email dtolley@attwoodmarshall.com.au, or free call 1800 621 071 any time. You can also book an appointment online at your convenience via our online booking app.
Our Wills and Estate Lawyers are available for appointments at all our conveniently located offices across the Gold Coast, Brisbane, Sydney and Melbourne.
