Law Talks Episode: Case in review – a mother’s last wish documented in an informal Will

Robyn: Good morning and welcome to another edition of 4CRB’s Law Talks. And today we have joining us from Attwood Marshall Lawyers Estate Litigation Senior Associate Martin Mallon. Thanks for joining us, Martin.

Martin: Thanks for having me.

Robyn: Well, Martin is here to talk to us about issues surrounding informal wills and how they can lead to disputes arising for the loved ones left behind.

Martin will explain how courts act on informal wills, and we will discuss a specific case, a handwritten note was found after someone passed away and the deceased’s daughter fought to have it recognised as that individual’s last will and testament.

So, to start with, Martin, can you tell us what is an informal will?

Martin: Sure, Robyn. Well, an informal will is a document that outlines the testamentary intentions of a will-maker. However, the document itself is not executed properly in the eyes of the law, and therefore it may not be recognised as the individual’s last formal will. 

Under the legislation, for a will to be a formal will, it must be in writing, signed by the will-maker, witnessed by at least two witnesses, and have a date at the time it was signed.

A will, generally, must outline how the will-maker wants to leave their estate. With an informal will, the court has the power to, notwithstanding that the will may not have been signed correctly or may not have a witness, that the court does have the power to grant what’s called probate. So, to allow the court to say this is the last formal will if the document outlines the testamentary intentions of the deceased person, and if it hasn’t been executed correctly.

So, with those type of applications, what a court looks at is the evidence of what the will-maker’s intention was and the way in which the document was executed.  A lot of people think that it’s very easy, just sign a will at home, a do it yourself or just on a piece of paper or even a video recording and they think that will satisfy the requirements.

There have been cases where, there’s been a Facebook will, there’s been, in 2017 there was a Supreme Court case where the will-maker left an unsent text message, and that document, the court was satisfied that notwithstanding it wasn’t signed, and, witnessed, and with the date that they granted probate of that document.

But while those cases, there are few of those cases, most of those cases are unsuccessful.

Robyn: So, Martin, given that is the case, why do you think people try to go it alone and make their own will, without the help of an experienced lawyer?

Martin: I think Robyn, that talking about death and thinking about death, a lot of people perhaps don’t like thinking about it.

It can be uncomfortable to raise it within your family, especially we see it with blended families. So where, a person, their partner may pass away before them and, that person may want to leave their estate to their biological children, but not their stepchildren. And that can cause some disagreements and disputes and people we find that don’t want to, get into those disputes or have those discussions. There are also cost considerations and the time to sit down with a lawyer to get a will drafted correctly.

Robyn: And what are the risks of constructing wills this way? 

Martin: I think one of the main ones is that it can be extremely difficult to obtain probate.

So, you need to satisfy the court that this, say, a note was the person intended for the note to be their last will and testament. The cost of obtaining a grant on an informal will is, nine times out of ten, much more expensive than if a will was drafted correctly by a lawyer that practices in this area.

There are issues about  how to determine if the will-maker had what’s called testamentary capacity, and that is capacity to be able to sign a will, because if it’s, if it is witnessed at all,  if it is witness in front of someone that doesn’t have legal experience then the witnesses may not be able to understand, well, what is the test?

Robyn: Sure.

Martin: And whether the person even takes notes.  It can also be difficult to determine whether the note or the informal will, whether the person intended that note to be their last formal will, because if you go and see a solicitor, it’s drafted correctly and there’s some type of formality to it where, um, it is clear that it’s their last valid will and it complies with the requirements of getting it signed, witnessed in front of two witnesses and dated.

Robyn: Sure. So, Martin, can you give us an example where an informal will led to difficulties for the beneficiaries who were set to inherit something in the will? 

Martin: Sure, Robyn. Well, there was a recent case, a Supreme Court of Queensland case. It was only in May 2024, and that case is Wool against Marino. In that case, it was an informal will, a note, left by the deceased, which didn’t comply with the requirement, the formal legal requirements.

It involves the will of the late Erika Kaegi-Fluri, who died on the 16th of July 2022 in Queensland. Erika was survived by her only child, Juliana, and Erika engaged a lawyer to draft a will in 2013, 2018, and 2020. 

The 2013 will left Erika’s entire estate to Juliana. Following the 2013 will, there was a dispute between Juliana and Erika about the financial arrangements of where Erika would reside.

Erika wanted to reside with her daughter in Cairns, and there was some disagreement that actually led to litigation, and a big dispute which ended up in mediation. 

As a result, in 2018, Erika elected to change her will and left Juliana, out of the will completely, and in that will, it cited this disagreement and the mediation that concluded in 2017.

In 2020 there was, another formal will which again left no provision for Juliana. And the 2020 will left one third of her state to the RSPCA and the remaining two thirds equally to her two friends. 

At Erika’s death, Juliana found a handwritten note by Erika, dated the 6th of June, 2022, which indicated Erika’s intention to change her will to leave her estate to her daughter.

And at the time the note was made, there were some concerns about Erika’s capacity. 

Erika was refused medical treatment on the same day, the 6th of June, 2022. And Erika also had a history of mental health problems. So this case relates to Juliana making an application to the court seeking an order that the informal will, the note, was Erika’s true last valid will and that was opposed by the executor under the 2020 will, on the basis that it was claimed that the note merely suggested what Erika’s intention was. And also there was issues about testamentary capacity.

Robyn: Sure. So, what factors did the court consider in determining whether the informal note could be admitted to probate?

Martin: Well, Robyn, to give you an idea, I just want to read out what the note stated, the 6th of June 2022 note.

So, it read; Dear Juliana, I am changing my will. Kim, Adam, and Michael have abandoned me. The RSPCA let me down. I leave the house and all my money to you, Juliana. I go to hospital now. When I get better, I make a new will with a lawyer. No money must be paid to RSPCA, Michael or Kim and Adam. I cancel the Cairns will. Sorry, my hands are getting sore. I love you very much. You are my only daughter. You are all I have now. I write this letter in case something happened to me. Sorry, I’m very tired. I contact you from hospital. I love you more than anything in the world. Your mother.

So that’s what the note said.

What the court looked at was that the note was not accompanied by any formal legal headings. The court noted that English was not Erika’s first language. And in particular, it states that when I get better, I make a new will with a lawyer. So that suggests that an intention to make a new will, but the note was actually not Erika’s last will, but that she intended to get a will when she got better.

Also, there was Erika’s mental state and capacity that was called into question. There was expert evidence that was filed which suggested that Erika did not have capacity to fully comprehend the effect of what she was trying to do because of significant cognitive decline.

The will also was left in an envelope. It lacked, the court held, that it lacked the deliberation that was required in when someone makes their will being their intention for the document to be their last valid will. 

And lastly, that the court had to be satisfied that Erika had testamentary capacity. Usually, the court will assume the person has capacity, but when someone makes an application seeking an informal will, to be a valid will, it is, the onus is on the applicant, so in this case, Juliana, to prove that Erika had capacity at the time the note was written.

Robyn: Yeah. Martin, can you explain the concept of testamentary capacity and how it was assessed in this particular case?

Martin: Sure. Well, capacity goes back to a very old case. It’s an 1870 case, and it’s still, the law today.

The case is Banks against Goodfellow. It’s called the Banks and Goodfellow test. And this test is that the person must be aware and appreciate the significance of the act being their last valid will. The person must be aware, at least in general terms, what’s the nature and extent and value of their estate.

They must also be aware who may reasonably have a claim on their estate. And in this case, Juliana would have a claim and to evaluate and discriminate between the respective claims. And lastly, you must not have any disorder of mind, that would prevent you to have capacity. So, it could be if someone had a significant mental health problem or suffered some type of delusions, that would mean that you wouldn’t have a capacity.

Robyn: Sure.

Martin: In this case, there were concerns about Erika’s capacity on the day, the 6th of June, 2022, which is the date of the note. Erika went to hospital and she was refused medical treatment because the nurse was of the view that Erika lacked capacity to consent to the medical treatment and while capacity about whether you can consent to a medical treatment is a different test to what is the test for to sign a will, it does indicate that there was some concerns of capacity and there were, there was evidence that was filed that Erika seemed confused, she wasn’t able to make complex decisions about finances, lifestyle and health and ultimately, at the time the note was written, it was written at a time where Erika was of high emotion and didn’t have the time to deliberate for it to be her last valid will.

And the note says, when I get better, I make a new will with a lawyer. So that itself indicates that she had an intention to make a new will in the future, but this letter was not her true last valid will.

Robyn: Yeah. Okay. So, intriguing set of circumstances. What was the outcome of this case? 

Martin: In this case, Robyn, the court was not satisfied that Erika intended that her note, form her last valid will or to revoke the 2020 will.

It did not indicate her clear intention, because of the cognitive decline, the emotional fluctuation and the way that the note was written. The court granted probate to the 2020 will. Interestingly, part of Juliana’s application was she sought an application seeking further provision from the estate as she was a child, and she was left out of the will. So, that aspect of her claim has yet to be determined. 

Looking back on the facts of the case, it is very arguable about whether, perhaps, the better approach may have been to seek the family provision application in the first instance as opposed to trying to uphold the informal will where, in my view, it’s clear that the note was not intended to be the last valid will.

So, in my view, I think that Juliana may have wasted cost in trying to prove that this was her mother’s last valid will, that she intended it to be her last valid will, as opposed to just seeking a family provision in the first instance. And the family provision application is yet to be determined, but in my view, I think that it would have been a better course to file an FPA as opposed to seeking to get this will to be the last valid will.

Robyn: Yeah. So, Martin, what’s the biggest lesson our listeners can take away from this particular case?

Martin: I think you’ve heard me say this a few times, Robyn, but it is important that if you get a will for the will to be drafted by someone who practices in this area, an estate planning lawyer who can ensure that it complies with the formalities under the legislation.

And while there may be some cases that a court is willing to grant an informal will as a person’s last valid will, those cases are few and far between, and the cost of engaging a lawyer to draft a will compared to the cost that would be incurred to try to seek a determination that it is your last valid will, we’re talking a difference of tens, possibly hundreds of thousands of dollars to prove that.

A takeaway message is for if a beneficiary finds an informal will following the death of a loved one, it’s also recommended to seek advice about the document because there are circumstances where perhaps there is scope for a court to order that an informal will meets the requirements, and it can be admitted to probate.

If you are a beneficiary, a solicitor who practices in estate litigation, they can assist you in challenging whether the will is invalid or seek to uphold it and seek that an order that will be admitted to probate. This is a very complex and emotive area of law and we’re seeing it more and more often, about disputes of informal wills and it just reinforces the point that, if you want a will to be binding, the best approach is to engage a lawyer who practices in this area.

Robyn: Yeah, I mean, as you said, it’s such, you know, an important document and probably one of the most important documents you’ll ever make in your life, so why leave it to chance?

Martin: Exactly.

Robyn: Thanks for your advice today, Martin.

Martin: Thanks, Robyn.

Robyn: You’ve been listening to Law Talks here on 4CRB, which you can hear every Friday morning from 9 o’clock.