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Case Study: Why it’s important to have an up-to-date will

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It may seem like estate solicitors go on about the importance of having a will or having an up-to-date will. You should know that we do this not because we are bored and/or are seeking work. It’s because of the all too real situations we come across where we see things go wrong.

What happens when there is no up-to-date will in place?

What follows is a real-life situation and subsequent consequences that came as a result of not having an updated will.

A woman had recently passed away unexpectedly in a car accident and her brother came to see us. He wanted assistance in resolving the estate, as well as advice concerning the initial situation. You see, when she died, our client’s sister was still married. However, she was separated from her husband for about a decade or so. They just never bothered with the formalities of getting a divorce and went about their separate lives.

After initial searches, no will was able to be located. This meant that intestacy rules applied to the estate. Therefore, statutory rules applied to determine who would be beneficiaries of the estate. The deceased did not have any children and was survived by her (long-since-separated) husband.

Under the intestacy laws, her husband would receive the entirety of her estate. This is even though they had been separated and had no relationship for 10 years. We considered making enquiries about asking this husband to ‘give up’ his entitlements in the estate. However, this would have relied entirely on the goodwill of the husband. Unfortunately, he was under no obligation to give up those entitlements.

Importance of an updated will

Of course, having an up-to-date will would have avoided this whole scenario, with the deceased’s will being able to specify who would receive the entitlements in the estate. Just a few days before the accident, the woman had told her brother that she’d made a will. The only problem was that it couldn’t be found. The last that anyone could ascertain was that there may have been a will made by the deceased herself, and it probably was amongst her personal possessions.

The next legal problem was that, if a will exists and is kept in the possession of the deceased person, but that will cannot be found after death – then the law presumes that the will was destroyed (with the intention of revoking the will). This returned us to the starting position of an intestacy, which meant that everything would pass to the husband.

Thankfully, after a few months of searching, our client obtained an original will of his sister from her friend. We now had a will and had even located the original will (which is important for estate administration matters). Success! Or, so we thought…

The matter of validity

At this point, a further problem was unfortunately identified. The will stated that the original will was signed in triplicate. Surely that’s just being over-cautious… why would this be a problem, you may wonder? Well, signing the same will three times doesn’t necessarily mean it’s a will signed in triplicate.  In this instance, each will contained a provision at clause 1, “I revoke all previous wills made by me.” So, despite the best of intentions, our lady, unfortunately, didn’t sign her will in triplicate. She actually made 3 wills on the same date.

The result of all of this? When it comes time to ‘prove’ the will – that is, obtain a grant of probate from the Supreme Court – rather than following the ordinary and relatively straightforward process for addressing these matters, we instead had to address all of the above matters and explain the situation.

Plus, we had to provide supporting evidence in order to convince the Supreme Court that our lady had, in fact, had an up-to-date will. More importantly, we had to show that it was valid. Although, we couldn’t say for certain which of the three original wills signed on the same date was her last will!

A word on good intentions

As you’re probably gathering from the above, the lady’s actions, taken with the best of intentions, resulted in a complicated court proceeding to explain the series of unfortunate events to a court. This required supporting evidence, in order to convince the Supreme Court of the validity of the will and to make a grant of probate.

As it wasn’t a straightforward process, this, unfortunately, meant that it was a more costly exercise than the standard, uncomplicated procedure to obtain a grant of probate. Not to mention the consequential delays, uncertainties and anxieties resulting from this comedy of errors.

It’s scenarios like this that estate lawyers see all too frequently. They cause us to constantly echo the mantra of why it’s:

  1. Important to have a will in the first place (so you can ensure your estate goes where you want it to); and
  2. Important to have an up-to-date, valid will (so you can avoid complications, which usually lead to increased complexity and otherwise unavoidable legal costs).

So really, estate lawyers are shooting themselves in the foot by telling you to ensure your will is up-to-date. Getting a will done incurs an upfront, but small payment. Compared this to costs to your estate if your will isn’t up to date and valid and you’ll see the merit in protecting yourself properly through a proper service performed by an experienced lawyer.


Need a Copy of a Will?

If you need a copy of a Will and/or are seeking legal advice, the team at O'Connor Rudy and Garrett can assist you. We will contact you to confirm additional details and then organise contacting the required parties to secure a copy of the Will for you.