It is common for legal disputes to arise when someone dies without a valid Will or any Will at all and dies ‘intestate’. These legal battles over who gets the assets in the estate can be costly and distressing for all involved. Many people want to uphold the wishes of the deceased, however, in the absence of a valid Will, it can be extremely difficult to work out what is the right thing to do. Attwood Marshall Lawyers Estate Litigation Senior Associate April Kennedy recently joined Robyn Hyland on Radio 4CRB to discuss the consequences that can unfold when someone dies with an informal Will or dies intestate (i.e. no Will at all).
Introduction
It is estimated that over half the Australian population over the age of 18 do not have a Will. As lawyers, we have heard every excuse under the sun as to why someone has not made their Will:
“I don’t own any property (or the bank owns it!).”
“Making a Will is too expensive.”
“My family knows what I want, and they’ll carry out my wishes.”
“I don’t want to tempt fate by talking about death and doing a Will.”
“I’m young and healthy – there is no need for a Will until I’m old.”
These excuses are fraught with risks, and unfortunately, people underestimate the consequences of dying without a valid Will (or no Will at all).
It is not a new concept for people to create “informal Wills” to try to make a note of their wishes without obtaining proper legal advice. They do this in various ways either by jotting down notes on a piece of paper at home or, for some people, recording their wishes in a video on their phone.
What everyone must understand is that recording your wishes or creating a homemade Will is unlikely to comply with the requirements set out by law to have that document accepted as someone’s final Will, and in many cases, informal Wills can cause more problems than you intend it to resolve. In many cases, an informal Will won’t be upheld, and the rules of intestacy will apply. That means you will be treated as if you died without a Will and the state laws of intestacy will apply as to who can apply for Letters of Administration of your estate and the beneficiaries. For example in Queensland, the provisions of Schedule 2 of the Succession Act 1981 apply. Normally, your surviving spouse will inherit, but what if you are separated? This may not be what you were hoping for as to who inherits your estate!
The difference between a formal Will and an informal Will
A valid or formal Will is properly executed according to legislative requirements. For a Will to be appropriately executed and valid, it must be:
- in writing
- signed by the testator
- signed by at least two authorised witnesses who are present at the same time
- dated at the time of signing; and
- it must record how the testator wishes to leave their estate.
These formal requirements are in place to ensure that the document being signed reflects the Will-maker’s true testamentary intentions (in other words, how they wish to leave their estate and to whom).
An informal Will is a document that may have been created or prepared by an individual to document their testamentary intentions but may not comply with the legislative requirements.
For example, if a homemade Will or informal Will is created but has only been signed by one witness instead of two, or if it has not been signed or witnessed at all or dated correctly, it may be considered an informal Will.
Difficulties associated with informal Wills
Many people that have drafted their own Will or written an informal Will assume that it will be upheld and their wishes will be carried out in accordance with that document once they are gone. However, informal Wills can be difficult to use to apply for a grant of probate. The Court will only allow an informal Will to be admitted to probate in limited circumstances.
Informal Wills can raise many questions around the validity of the document, and you need to put a lot of evidence before the Court about how that document came into existence. That is often difficult because you might not know how the deceased made the document and under what circumstances the document was executed.
There is a strict legal test that the Court adopts to determine whether an informal Will should be upheld as that person’s last Will. Generally, there are three questions the Court will ask:
- Is there a document? This definition of a document has been expanded to include a handwritten note, a typed note on a phone, a draft text message or email, and a video recording.
- Does the document contain the deceased’s testamentary intentions? (i.e. their intentions for how they wish to leave their assets after they pass away).
- Was the document intended to operate as the deceased’s Will?
Most documents submitted to the Court as an informal Will fail on the last question.
Is it better to have an informal Will rather than no Will at all?
Both an informal Will, or the absence of a Will, can be equally problematic and costly.
The benefit of having an informal Will is that your wishes are known, but they’re not tested.
Informal Wills can generate a lot of questions around the document’s validity and the Will-maker’s capacity to make a Will. In contrast, when a Will is made by a lawyer, the lawyer ensures that the person was in the right state of mind to make the Will, they understood the contents and effect of the document and the assets they own, and they were not subject to undue influence. A lawyer keeps comprehensive file notes so that if the Will-maker’s capacity is ever questioned, there is evidence to refer to, to try to ensure the Will is upheld. When someone has not sought advice from an estate planning lawyer and had their Will drafted correctly then, usually, there is no evidence of this kind.
Another downfall of an informal Will is that the document may be vague or misinterpreted. For example, many people refer to their house or their property as their ‘estate’. A person’s estate consists of their property, bank accounts, shares, investments, motor vehicles, and personal possessions (and sometimes superannuation). A person may not stipulate clearly which asset they wish to leave to their beneficiary/s and as a result, their intended beneficiaries may end up missing out.
This area of law is highly complex, and it is easy for people to get it wrong if they do not have a comprehensive understanding of Succession Law.
When you have families with complexities and issues such as:
- estrangement
- parents providing for adult children who may have special needs
- blended families
- adult children still living with their parents
There is a lot to consider and plan for to ensure you protect those you intend to benefit from your estate long after you are gone.
No two families are the same, which is why a DIY Will kit or handwritten note cannot give you and your family the same protection as a professionally drafted Will and trusted legal advice.
What can happen when an informal Will fails
We have seen many cases where an informal Will fails leaving the intended (and unintended) beneficiaries dealing with disputes that arise when the estate is to be distributed according to the rules of intestacy.
Case study: a mother dies leaving behind a $1.4M estate and four adult children. She lived with her two youngest children all her life, and she was effectively estranged from her two eldest children. Without a Will, under the rules of intestacy, her estate is to be split equally between her four children, without considering any other circumstances or the mother’s wishes.
The mother expresses her wishes prior to her death to her two youngest children and there was a handwritten note documenting her intentions, but no formal Will.
The woman lived a secluded lifestyle, she did not have any friends, she did not visit a doctor, and she relied solely on her youngest children for companionship and support. In turn, her youngest children dedicated their lives to supporting their mother, and each other.
In this case, the prospect of seeing a lawyer became all too daunting to the mother after she had a negative experience previously when going through a stressful divorce that took over a decade to settle. In the end, she did not make a formal Will. She passed away unexpectedly. Failing to make a Will, she left her youngest children in a very problematic predicament.
Despite her youngest children knowing her wishes, the informal Will the mother had written was not upheld. If she had a proper Will, she would have ensured that the Court could carry out her wishes and could have potentially avoided the risk of litigation and costs on her family.
It is also important to understand that without a Will, there is no executor appointed to administer the estate. In most cases, this will mean that the next of kin can take on the administration process by applying for Letters of Administration on intestacy. By being granted letters of administration, that person, or persons, is then authorised to administer the estate.
In the case example, the four children were entitled to apply to the Court to administer the estate as they had equal priority.
There was a dispute about who should be authorised to administer the estate. Ultimately, the Court appointed an independent person to do this, which comes with additional cost – sometimes tens of thousands of dollars.
It is common for disputes to arise in situations such as this, making an already painful grieving process much more complex and costly.
Dying intestate with no family
If a person dies, leaving no person who would be entitled to their estate under the rules of intestacy, the right of entitlement usually ends at first cousins. If there are no family members to inherit the estate, then the estate goes to the government.
We have seen cases where estates worth over $1M are paid to the State because there are no family members left to inherit the estate, or there is no Will in place to stipulate the deceased’s wishes as to where that money or property should go. In many cases, people without family usually leave behind friends or other people they consider their family, however, under the rules of intestacy these people will not receive assets from an estate in the absence of a Will.
There are also many people who wish to leave their estate to a charity, however failing to document these wishes properly means that the charity is unable to receive such gifts, and ultimately the deceased’s wishes would go unfulfilled.
Attwood Marshall Lawyers – experts in resolving disputes over Wills and estates
As one of the leading law firms with the country’s largest and most experienced Wills and Estates Departments, we have dedicated teams who practice exclusively in Estate Litigation, Estate Planning, and Estate Administration.
The three areas are significantly different and require specialist knowledge to ensure clients can plan for the future effectively. When disputes arise after someone passes away, you need an experienced lawyer on your side to ensure the matter is resolved in the most efficient way possible, reducing costs and the stress associated with litigation.
If you are involved in a dispute over an estate, it is essential to seek immediate advice, especially if a loved one has died intestate. After a person passes away, there is a very brief window of opportunity to take steps to contest the distribution of the estate.
One of the most effective ways to protect your estate and your loved ones is to get it right the first time and put a professional Will and proper estate plan in place.
Whether you require assistance from a lawyer concerning an estate dispute or getting your legal affairs in order and drafting your Will, Enduring Power of Attorney or any other documents to safeguard non-estate assets and ensure who you want to benefit from these assets ultimately will, we are ready to help you.
For assistance with contesting Wills and disputes over estates, please contact our Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or phone 1800 621 071.
To book an appointment to have your estate plan reviewed, contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or book online via our instant booking app by clicking here.
Read more:
Advice for beneficiaries in a Will when there is a dispute
How to defend a claim against an estate when you are appointed Executor in a Will
An accusation of undue influence: Legal battle ensues after doctor emerges as major beneficiary of patient’s $30 million estate
