Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 8 August 2015.
In 1994, John hand-wrote a document that he intended to act as his will. He left the whole of his estate to his five children equally and nominated one of his children as his executor. John signed the document but he neglected to execute it in the presence of two witnesses. At the time of John’s death, this document was located amongst his personal papers.
In 2007, John met with a branch manager of the Public Trustee of New South Wales who took John’s instructions and professionally drafted a will for him. The will was later duly executed by John in the presence of two witnesses. This will appointed the Public Trustee of New South Wales as his executor and left the whole of his estate to just one of his sons, James and his grandson, Jimmy equally. At John’s death, the original 2007 will could not be located.
When John died in 2013, his estate was valued at approximately $3 million.
The Public Trustee sought a grant of probate over a copy of the 2007 will and John’s children, who were disinherited under the 2007 will, commenced action seeking a declaration that John did not have capacity at the time he executed the will and that he lacked “knowledge and approval” of the will’s contents.
The children also sought a declaration that the 1994 document be declared as a valid will.
The court heard evidence relating to John’s capacity at the time he made the 2007 will and also noted that John was an elderly man whose first language was not English, he had no legal training, he was not advised that his other children could make a claim for provision from his estate and further that there was a considerable delay between John’s initial attendance with the Public Trustee and the time that he executed the will.
The court ultimately found that the 2007 will was not valid and admitted the 1994 “informal will” into probate.
After a 7 day hearing, the Public Trustee’s legal costs amounted to over $220,000 and the children’s legal costs, totalled $650,000. These costs were paid from John’s estate.
