In most jurisdictions neither a witness or the spouse of a witness can benefit under the Will. A solicitor who negligently allows a Will to be attested to by such a witness will be liable to the beneficiary.
Olive Eileen Currey died in May 1991. Her husband predeceased her by several years. Olive lived alone in her house in Paddington, a suburb of Brisbane. Rona Van Erp, lived nearby & had been friends with Olive for a number of years.
Olive’s last will was made in December 1990. Olive instructed a solicitor Rosemary Hill to prepare a will for her. She wanted to leave her house to her son and Rona as tenants in common in equal shares. Olive left Rona several pieces of furniture with the residue of the estate left to her Son, alternatively in the event of his death, to Olive’s three grandchildren.
On 7 December 1990, Rosemary brought the draft will to Olive’s house. Rona’s husband was the only other person present. Rosemary read the draft Will to Olive, who signed it as testatrix. Rosemary signed as one witness, and then pointed to the place where Rona’s husband was to sign and, he later gave evidence that he signed, “because she asked me to”.
At the time that Olive died in May 1991 Queensland law provided that a gift under a Will to the spouse of a witness is void. As a result, Rona failed to receive the gift that Olive had intended to give her.
The Court held that Olive had enlisted Rosemary’s professional services so that Rona would benefit from her estate. A solicitor who prepares the execution of a Will owes an intended beneficiary a duty to take reasonable care to ensure that the will is not witnessed by a spouse of the beneficiary in jurisdictions where this may result in the beneficiary forfeiting the gift.
Rona sued Rosemary for damages for negligence and was awarded $163,471.50, the value of the bequest that she would have received under the will.
The witness-beneficiary rule has been abolished in the ACT, South Australia and Victoria, and has been modified in NSW, the NT, Queensland, Tasmania, and Western Australia. However even where this is the case where a beneficiary or the spouse of a beneficiary witnesses a Will it could raise a suspicion that the testator did not have testamentary intention, or knowledge and approval of the contents of the Will.