Attwood Marshall Lawyers’ Wills and Estates Senior Associate and Accredited Aged Care Professional Larisa Kapur explores a homemade Will disaster that required a costly application to the Court, illustrating the dangers of trying to draft your own Will without the help of an experienced estate planning lawyer.
A Brisbane court was recently asked to interpret a homemade Will that was plagued by “imprecise” language, “frequent” grammatical errors and incorrect punctuation, in a court action that would have led to tens of thousands of dollars in unnecessary legal costs for the deceased’s loved ones.
The Will, drafted by a Romanian woman with limited English, bequeathed her properties, household items and valuable belongings to her children and grandchildren.
The beneficiaries, however, could not decipher the deceased’s intentions, given the ambiguities and inconsistencies throughout the Will, as well as the confusing way she chose to list her belongings.
If the deceased had engaged an experienced estate planning law firm to draft her Will, it would have contained precise legal terminology (that clearly separated legal rights from personal wishes, for example) and structured the bequests in a way that prevented conflicting claims over specific items.
The case illustrates the dangers of drafting a Will without an experienced legal professional on hand to ensure that the language is clear, concise and easy to interpret. Even with good intentions and the simplest of estates to plan for, homemade Wills can become a costly legal minefield for the loved ones you leave behind.
The case: RE Negrean; Borbil v Borbil [2025] QSC 66
The case centred on the homemade Will of Raveica Negrean. Romanian-born Raveica had lived in Australia for 36 years but had limited written English and no typing skills. She was 65 years old when she drafted the Will in question in February 2019.
She died in March 2019, survived by her five adult children.
One of her sons, John Negrean, argued that Raveica owed him hundreds of thousands of dollars and that the Will gifted him a life interest in her residential property in Sunnybank Hills, Queensland. The debts, according to John, were to be paid through the future sale of the property, which was the central asset of her estate.
His brother, Tim Borbil, who was also the executor of the estate, filed the action, seeking declarations regarding the proper construction of Raveica’s Will and an order requiring that the Sunnybank Hills property be vacated and left empty.
The Supreme Court of Queensland had to interpret Raveica’s Will, dissecting her choice of words and deciding on how particular sentences should operate as an indication of her wishes.
An example of the confusing wording that sparked the legal dispute includes: “I would ask that any money in my bank account to use for bills, funeral costs and repairs to house at 3 Falstaff Street Sunnybank Hills, Queensland 4109. Which is my son John Negrean (Ioan Borbil) principal place of residence and I wish it to continue being his home for as long as he wanted to be.”
Justice Melanie Hindman handed down her decision on 3 April 2025. She said that in the “context of the Will as a whole,” Raveica’s words were not sufficient to create for John a life interest in the property, or a right of residence. Instead, it was more a wish with no legal force.
A professional estate planner would have used precise language to clearly distinguish between life interests, rights of residence and mere wishes, such as by clearly stating “I grant John a life interest in the property” or “I give the property to XYZ but express my wish that John may continue to live there” – removing all ambiguity and preventing the lawsuit.
The ruling also dealt with which siblings would receive particular possessions and assets from the estate, including not only the Sunnybank Hills property but also another investment property, a motor vehicle, jewellery, and other items.
The judge drew attention to several “inconsistencies” in the way Raveica set out this section of her Will, including the confused ordering of items and words that “have no work to do,” which added to the ambiguity.
“Crystal wear and collectibles” were for example mentioned in multiple sections with different beneficiaries, and the family couldn’t tell which items would go to John and which were to be shared equally among all the adult children. The judge had to rule on each item.
Again, if Raveica had engaged an estate planning lawyer, her Will would have been structured with clear headings and unambiguous language, clearly listing each item once with clear statements like “I give the following items specifically to John…” and “I give the following items to be divided among all my children…”, saving her children from launching legal proceedings to clarify her wishes.
How does a court translate a Will that is not clear?
While it was noted that the family did not view several elements of the case as contentious, their differing opinions were stark enough to necessitate the court’s help in interpreting their mother’s intentions.
Often, homemade or “DIY” Wills are fraught with errors, suspicions over mental capacity and undue influence, or are not executed correctly, making them vulnerable to challenge.
In this case, there was no question over the Will’s validity. Instead, it was the testator’s intentions that were at the source of the family disagreement. The incomplete sentences, spelling mistakes, and grammatical errors confused the beneficiaries and caused misinterpretations
When determining a Will’s true meaning, Justice Hindman said that a court needs to “ascertain the deceased’s intention,” by:
- Construing the words of the Will according to their ordinary meaning, bearing in mind the facts existing at the time the Will was made,
- Considering the Will as a whole, and
- Giving effect to all the words of the Will.
She also acknowledged that, in this case, regard could be had to the “speech habits” of the testator (for example, that English was her second language) and the fact it was a homemade Will. However, the focus should be on the “plain meaning” of the words used and the circumstances at the time the Will was made.
“The Court should not speculate or guess about what the maker intended – the Court must adopt what seems the most probable interpretation of the will,” she said.
Why legal advice matters in estate planning
This case highlights the challenges associated with homemade Wills, especially when the testator lacks proficiency in English or legal drafting skills.
When drafting a Will, it’s important to:
- Seek professional assistance from an experienced estate planning lawyer,
- Use plain and clear language so the Will is easy to interpet,
- If English is not the testator’s first language, language barriers should be addressed up front, and any subsequent translations thoroughly checked,
- Avoid ambiguities and inconsistencies (i.e. clearly distinguish between specific gifts, residuary clauses and non-binding wishes), and
- Understand (and follow) the legal requirements for a valid Will.
These steps can all help ensure a Will is legally sound and clearly expresses the testator’s intentions, reducing the likelihood of disputes and ensuring testamentary intentions are respected.
Applications to the court can be incredibly costly, draining the resources of an estate and causing significant stress to family members dealing with the administrative and emotional burden involved.
Many estate litigation matters could have been resolved without resorting to court intervention had the testator sought legal advice when drafting their Will.
An experienced estate planning lawyer can help with translating your intentions into clear, legally binding terms that avoid vague phrases and inconsistencies. They can also identify potential challenges that could arise from your specific family dynamics or asset structure, pre-empting any issues and helping to save your beneficiaries from legal disputes down the line.
Ultimately, working with an experienced estate planning lawyer provides vital peace of mind, ensuring your wishes are clearly documented and legally sound.
Attwood Marshall Lawyers – helping you plan for the future and preserve your wishes
Attwood Marshall Lawyers is an experienced estate planning law firm with one of Australia’s most prominent and accomplished Wills and Estates teams. We take a holistic approach to estate planning to ensure our clients get a personalised service that considers their unique circumstances and specific wishes.
For advice on your estate planning, please get in touch with our Wills and Estates Department Manager Donna Tolley directly on 07 5506 8241, mobile 0423 772 555 or email dtolley@attwoodmarshall.com.au.
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