Intention an element in Revocation​

Richard Miruzzi died in March 2016, aged 87. Richard was twice married: both marriages ended in divorce. Between April 2011 and 22 December 2015 or thereabouts, Richard instructed his Solicitor on multiple occasions to draft or amend a will for him.

That pattern in the dealings between Richard and his solicitor was that Richard, from time to time, instructed his solicitor to prepare a will, Richard would attend to the execution of the document independently of his solicitor and the executed document was then returned to the solicitor for safekeeping.

In the months before his death, Richard had expressed a wish that he would leave his entire estate to a friend, Leonie Rigney.  However, in November 2015, Richard and Leonie had a falling out leading to Richard “destroying” what was believed to be all previous Wills gifting Leonie his estate; leaving the whole of his estate to

“The Children’s Hospital at Westmead for its general medical purposes”

In February 2016, Richard arranged an appointment to see his solicitor at his accountant’s office. The solicitor believed that it was “to execute the will” leaving his estate to the Children’s Hospital; the accountant, following discussions with Richard, believed he did not intend to sign the 2016 draft Will at the appointment.

Prior to executing the Will Richard was admitted to hospital after a fall, rapidly lost capacity and died.

Three weeks prior to his death, Richard and Leonie reconciled their relationship with Richard telling her that he wanted to make a Will leaving everything to her.

In July 2016, Richard’s solicitor found an original Will dated 17 August 2015 (the 2015 Will) in his office leaving everything to Leonie; who commenced proceedings to have the 2015 Will admitted to probate.

Importantly the Court has held that the document sought to be admitted to probate as an informal will must, itself, be considered in context;

“In appropriate circumstances, an inference may be drawn that the deceased was aware of the formalities required for a will. This may affect the question whether the Court should be satisfied that the deceased intended the informal document to be his or her will or an alteration to his or her will.”

The Children’s Hospital cross-claimed on the basis that the 2016 draft Will was an informal Will pursuant to section 8 of the Succession Act 2006 (NSW) could be admitted to probate.  It also argued the deceased destroyed a copy of the 2015 Will on the mistaken belief he had destroyed the original.

Richard’s former spouse argued that she was his de facto spouse at the date of death and neither document should be admitted to probate, as such she should receive the whole estate on intestacy.

Was the 2016 draft Will was an informal Will?

In order that the 2016 draft Will be admitted to probate,

“the deceased’s testamentary intention must be found not in any initial instructions given to his solicitor but in an intention manifested on or about 16 February 2016”. 

The Court held that the evidence suggested that although Richard requested the draft to be sent to him, he did not have a settled testamentary intention at that time.

Similarly making an appointment to execute the Will wasn’t evidence of Richard’s intention to benefit the Children’s Hospital over Leonie at that time either, as he had not executed the Will and he had reconciled with Leonie.

 “More probably than not, the deceased intended to make no new will unless and until he executed a formal will.  His established pattern was to make formal wills.”

The Court believed that Richard’s experience of attending to the execution of a multitude of wills independently of his solicitor provides a foundation for a finding that he was, at all material times, aware of a need for the execution of a formal will. There is, on the other hand, no foundation for attributing him with knowledge of the potential operation of section 8 of the Succession Act.

Had the 2015 Will been revoked?

The Court concluded that only one original version of the 2015 Will existed therefore, Richard had destroyed a photocopy of the 2015 Will as such it was insufficient for revocation; The legislation requires actual destruction of the will a “symbolic destruction” of a surrogate photocopy of a will is insufficient.

The failure to properly revoke a Will can be just as detrimental to an estate as the failure to properly execute a Will. An effective revocation requires the active destruction of the Will; the destruction of a photocopy of a will in the mistaken belief that it is the original is not an effective revocation.

 “The formalities of revocation of a will are no less important to due administration of an estate than those governing the making of a will.  The intention to make a will and the intention to revoke a will are paramount; but, in practical reality, some formality is required at each stage of estate administration so that the requisite intention can be conveniently verified.”

The Court held that the one certainty, in this case, was that the original 2015 Will found its way into the safekeeping of Richard’s solicitors firm and there survived the deceased unscathed.

The Court held that Richard had died without having revoked the 2015 Will and wasn’t satisfied that he intended the unexecuted draft will to operate as an informal Will, or intended that it operate with immediate effect at any time in advance of his prospective execution of a formal will.