Brett Whiteley and the Kitchen Will

Australian Artist Brett Whiteley died accidentally of a drug overdose in June 1992 with an Estate worth $13 million. Due to his anger toward lawyers following a protracted and bitter divorce settlement he drafted a series of informal Wills that led to expensive litigation in order to clarify and settle his testamentary intentions.

In May 1989, influenced by his acrimonious divorce proceedings, Whiteley instructed his solicitors to draft a Will he believed would protect his property from his ex-wife. In a later discussion with his sister Whiteley was disgusted that he had been charged $7000 for this Will, particularly when his sister had made her Will on a form she purchased from a Newsagent.

The January Will

In January 1991 Whiteley handwrote a Will leaving various gifts, establishing a travelling scholarship for young artists, and leaving the rest of his Estate to his daughter Arkie Whiteley. His Daughter and her boyfriend Christopher Kuhn were present when this was done and it was her recollection that the deceased had revoked his previous wills with this document. When Arkie asked if they should consult lawyers Whiteley said

‘No, it’s fine. I’m not going back to any bloody lawyer. No more bloody lawyers. They make a mess of everything.”

As his Daughter was a witness to the Will  the Witness-Beneficiary rule would preclude her from inheriting under that Will.

The Kitchen Drawer Will

His daughter’s then boyfriend Christopher Kuhn gave evidence that in April 1991 Whiteley could not remember where he put the January document so replicated  that document in front of Kuhn who then witnessed it. Whiteley then placed it in an envelope and taped it underneath the fourth drawer in the kitchen cabinet. Kuhn then made a note in an exercise book so he could remember where the Will was kept.

In November 1991 Whiteley told his accountant he had changed his Will, his accountant, (who was also named as an executor) expressed his concern as to the validity of the handwritten document and asked Whiteley to arrange for it to be checked by a solicitor. Whiteley said

‘I hate solicitors. They’re always ripping me off. If you think I should go I will.

However the Court accepted that following the execution of the Kitchen drawer document Whiteley’s intentions never changed and that he hadn’t made any other Will or destroyed or revoked the document which he had signed.

Following Whiteley’s death and funeral in June of 1992 Kuhn and Arkie Whiteley could not find the Will under the fourth drawer in the kitchen but there were remnants of the tape. Over the next few days the studio was thoroughly searched for the Will without success.

The litigation

The Court had to decide if the informal Wills were to be accepted for probate. As neither of the January Will or the Kitchen Drawer Will could be found and notwithstanding that Arkie Whiteley was the main beneficiary of the estate the court found that her evidence and that of Christopher Kuhn was compelling.

As the deceased was the cause of these proceedings the Court found that the cost of litigation for all parties was to be paid out of the Estate. Ironically the informal Wills mirrored the provisions of a Will that Whiteley instructed solicitors to draft and was executed in July 1988.

Creating a Will does not necessarily require a lawyer however there are formalities that must be met in order that the Will is accepted for probate. If these formalities are not met it may add to the difficulties your family face at an already stressful time.

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