No Witnesses no worries…..right?

Rupert Burge died in January 2013, aged 93. His widow Anne, son Conrad and daughter Susanne survived him. His wife applied for a grant of probate.

Most of the deceased’s estate comprised money in two offshore bank accounts. In March 1983 a will was drafted by solicitors in Victoria appointing his wife Anne sole executrix, and leaving his entire estate to her. In the event that his wife predeceased him the will appointed his son Conrad and daughter Susanne as executors leaving his estate to them in equal shares. That will was signed by the deceased, and witnessed by a solicitor and a secretary in Melbourne.

Rupert wrote two letters after the 1983 will: the first in 1994, and the second in 1999 outlining the disposition of family assets. These letters were kept in the same place as the Will in an envelope addressed: “Addendum to will attached hereto”. The Will was kept within the original envelope bearing the 21 March 1983 postmark from Toorak.

In late 2005 or early 2006, Rupert had a falling out with his daughter Susanne. In 2007 he amended a copy of the will prepared in 1983 making handwritten changes so that if Anne predeceased him Conrad became the sole executor and trustee. Importantly Conrad replaced Anne as the sole beneficiary of the estate. Rupert dated the will 10 June 2007 and signed it in the attestation clause. However it was not witnessed.

State Law provides that a Court can accept an informal Will. Conrad brought an action to have the 2007 document recognised. The Court held that it was a borderline case as while there was no doubt that Rupert contemplated the making of such a will the critical question, is whether he intended that document to form his will. Ultimately the Court considered it unlikely that Rupert, having made two previous Wills and being aware of the need for two attesting witnesses, would have considered that the 2007 document was itself capable of operating as a valid will. Secondly, had he intended the 2007 document to operate as his will, it is likely that he would have placed it with the 1983 will and the other documents in the envelope marked “WILLS”. Thirdly, even if he considered his wife to be financially comfortable, it would be a big step to entirely disinherit her, without explanation.

When considered in the light of all relevant circumstances, the Court was not persuaded that the 2007 document on its face contemplates legal effect, and the document was not intended to have present operation as a will. Ultimately it is important that any testamentary document that is made should follow the formalities of a Will.

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