Problems and the Informal Will

Martha Terre-Blanche died in September 2008 aged 84, leaving an estate valued at over $1 million. Martha drafted a Will that was signed and dated 27 June 2000, no one witnessed her signing the document; she took it to a justice of the peace at the local shopping centre who stamped and signed the informal Will.

A hoarder, whose home was so cluttered that no one could move about freely. It was fortunate that one of Martha’s friends found her informal will after her death.

The will named an accountant, a Mr Crameri as an executor. He renounced probate. The NSW Trustee and Guardian sought administration of the Will. The court declared that Martha intended the document to form her will; by involving the justice of the peace she had effectively authenticated her own informal Will. Letters of administration with the will annexed were granted to the NSW Trustee.

The NSW Trustee asked the court to assist in the interpretation of the will and to identify and locate Martha’s beneficiaries. The will mentioned people, charities and causes. Many of the people mentioned could not be found; extensive searches and enquiries could not conclusively determine the Martha’s statutory next of kin.

The main beneficiary of the Will was Martha’s first cousin, Sophia. However Martha was concerned Sophia would be persuaded by another cousin, Melita, or by Melita’s family to give her bequest away. The will purported to create a type of trust for Ms Hirsch whereby she would receive the income but not the capital.

The NSW Trustee located Sophia in New York. She was born in 1928, did not speak English and had no access to a computer. The court indicated the first step was to construe the will to ascertain its effect.

An important part of Martha’s will read

“Sophia Hirsch will not be left my house and the bulk of my estate”.

Sophia’s lawyer argued that there was a typographical mistake and the word “not” could be construed or rectified to read “now”. The court found that, when the will was read as a whole, it was not clear that the deceased’s intention was that the word “not” was a mistake. It was also found that the available evidence did not show that the deceased’s testamentary intention was other than expressed in her will. Therefore, rectification of the will was not appropriate.

Martha’s Will resulted in significant legal costs for her estate due to its complexity. In reality the Will should have outlined a simple distribution of assets from her estate to her cousin Sophia. However due to her concerns regarding her cousin Melita she created a confusing document that didn’t seem to reflect her stated wishes.

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