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Unsigned Will deemed as last Will of deceased

Posted by Benchmark Lawyers in Probates & Powers of Attorney, Wills | 0 comments

Re the estate of Allan John Young; Ex parte Young [2015] WASC 409

Keywords: informal will- unsigned- intention to sign- probate granted

Chronology and Background

The deceased was not married and had no children. His father passed away but his mother was still alive. The deceased had 3 siblings.

On 26 March 1970, the deceased made a Will bequeathing all his estate to his parents and in the event his parents predeceased him, to his siblings.

The deceased’s mother did not want to be a beneficiary of his Will. In May 2011, the deceased spoke to his accountant, Mr Ginbey, about preparing a new Will and giving his estate to his siblings and their children. The deceased prepared a schedule and saw a solicitor with the hope of making a new Will. The deceased sought advice from two different solicitors which was not adequate enough for Mr Ginbey.

In June 2013, the deceased brought up discussion about his new Will. Mr Ginbey suggested the deceased see Norton & Smailes. The deceased had updated his schedule for his estate distribution and saw Norton & Smailes.

From 19 December 2013 to mid-February 2014, there were several discussions between the accountant, the deceased and the solicitor regarding the Will.

On 13 May 2014, the solicitor sent a letter of advice and the draft Will to the deceased. Between 13 May and 19 May 2014, the deceased and Mr Ginbey had discussions about the Will. The deceased stated that there were no problems with the will and arranged a meeting with Mr Ginbey for 20 May 2014. Unfortunately, the deceased fell ill and did not make the meeting.

Mr and Mrs Hagan were the deceased’s neighbours. Ms Hagan spoke to the deceased quite regularly and the day before his death, they spoke about the Will. Ms Hagan deposed:

I can say with absolute certainty that Allan would have signed the new Will but for his unexpected death. I know that because he told me so in a conversation on Wednesday 21 May 2014, being the day before he died”.

At Court

S 32(2) of the Wills Act 1970 (WA) states:

“A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes —

  • a will of the person;

if the Supreme Court is satisfied that the person intended the document to constitute the person’s will, an alteration to the person’s will, the revocation of the person’s will or the revival of a will or part of a will of the person, as the case may be.”

The court was satisfied that:

  1. the deceased settled his testamentary intentions in 2011 and did not change his intentions after July 2013;
  2. the deceased’s instructions were confirmed by the solicitor in the 12 May conversation;
  3. the deceased was happy with the Will- referring to the conversation with the accountant;
  4. the further meeting of 20 May 2016 does not imply that the deceased had changed his intentions;
  5. the deceased did intend to sign the will as per the conversation with Ms Hagan; and
  6. the informal Will reflect the deceased’s testamentary intentions.

The deceased unsigned Will bequeathing his estate to his siblings and their children constituted his new Will.

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