Overview

In this case the Court considered whether the deceased’s document titled “My Wishes” and a life insurance “Nomination of Beneficiaries” form constituted an informal Will and effectively revoked an earlier formal Will.

Background

The deceased passed away on 26 November 2022 in an accident whist working on a rural property.

The deceased was survived by:

1. His two adult children from his first marriage, who were the plaintiffs in the proceeding (Plaintiffs)
2. His first wife. The deceased and his first wife divorced in 1995
3. His second wife, who was the defendant in the proceeding. The deceased and his second wife separated in 2008, however they never divorced Children from his second marriage.

While the deceased was married to his second wife, he prepared a formal will on 6 November 2003 (2003 Will), appointing his second wife as his executor.

On 23 April 2021, the deceased executed a document titled “My Wishes” and a “Nomination of Beneficiaries” form for a life insurance policy he held.

Under the Nomination of Beneficiaries form, the Plaintiffs were to receive 50% each of the $150,000.00 in benefits payable by the deceased’s life insurance policy. The My Wishes document recorded the deceased’s wishes regarding his funeral arrangements and where his ashes were to be scattered. Both documents had been signed by the deceased in the presence of his first wife, which he had completed with her assistance.

The estate was very modest comprising of the life insurance policy and furniture and personal effects of nominal value.

The Plaintiffs had previously sought to claim the benefits payable under the life insurance policy as the nominated beneficiaries. However, the insurer refused their claim, as the Nomination of Beneficiaries form had not been submitted to the insurer before the deceased’s passing. As such, the insurance company insisted on an order of the Court indicating who was entitled to make the claim. The insurance company subsequently and inadvertently disposed of the original Nomination of Beneficiaries form.

The Plaintiffs applied to the Court seeking orders that the document titled “My Wishes” and the completed Nomination of Beneficiaries form be declared an informal Will made by the deceased on 23 April 2021. The Plaintiffs submitted that the deceased intended those documents to supersede the 2003 Will and therefore be his Last Will and Testament.

The second wife disputed the Plaintiffs’ claim alleging that the signatures of the deceased on the two documents were forged. The second wife argued that the Plaintiffs’ case be dismissed, and requested the Court make orders in her favour as executor of the 2003 Will.

The two primary issues for the Court to consider were:

1. Did the deceased make an informal Will comprising the Nomination of Beneficiaries form and the My Wishes document?
2. If so, can the Court proceed on a copy of those documents?

The Law

Section 10 of the Succession Act 1981 (Qld) (Act) sets out the requirements for how a Will must be formally executed and includes (amongst other requirements) that a Will must be in writing, signed by the testator with two or more witnesses present at the same time, and the signature of the testator must be made with the intention of executing the Will.

The My Wishes document and the Nomination of Beneficiaries form did not comply with these formal requirements – the documents were not in the typical format of a Will and were only witnessed by one witness, and the original Nomination of Beneficiaries form had been destroyed.

Section 18 of the Act states that a Court may  dispense with the execution requirements for a Will if a document:

1. Purports to state the testamentary intentions of the deceased person, and
2. Has not been executed in accordance with the formal requirements

It is open for the Court to consider such a document forms a Will, if the Court is satisfied that the person intended the document to form their Will.

In making this decision the Court may, in addition to the document, consider:

1. Any evidence relating to the way the document was executed, and
2. Any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

Evidence

The most relevant evidence for the Plaintiffs was contained in an affidavit sworn by the first wife (their mother), which stated the following:

1. Despite being divorced, she and the deceased had always maintained a friendly relationship
2. On 23 April 2021, the deceased called her and asked her to come to his place to help him with something. When she arrived the deceased said he wanted her to help him write his Last Will and Testament
3. She agreed to help the deceased as he had asked. The paperwork that the deceased wanted help with filling out was the My Wishes document and the Nomination of Beneficiaries form. The deceased already had the documents laid out on the kitchen table
4. The deceased told her that he wanted her to write on the Nomination of Beneficiaries Form that each of their children were 50% beneficiaries of his life insurance policy
5. She read through each of the documents with the deceased and completed the answers as the deceased instructed
6. The deceased then signed each document in her presence. She confirmed that she watched the deceased sign the documents, and
7. Before the deceased went on his last trip away for work, he told her that his Will was in the top drawer of his bedside cupboard.

In addition to the evidence given by the first wife, affidavits from each of the Plaintiffs confirmed that, before his death, the deceased told each of them at various times that he had made his Will and that it was kept in his top drawer of his bedside table. That is where the Nomination of Beneficiaries form and My Wishes document were found by the Plaintiffs after his death.

The second wife gave no specific evidence contradicting the evidence of the first wife or otherwise bearing upon the circumstances in which the deceased signed the documents that purported to be his informal Will.

Outcome

In the decision, the Judge, Crowley J concluded:

1. There was a document that consisted of the original My Wishes document and a copy of the Nomination of Beneficiaries form
2. Together the two documents embodied the testamentary intentions of the deceased. In those documents, the deceased specified his wishes regarding his funeral arrangements, where his ashes were to be scattered, and nominated the Plaintiffs as the beneficiaries of his life insurance policy
3. That the documents were intended by the deceased to be his last Will and Testament
4. The deceased had testamentary capacity at the time he signed his documents, and
5. The terms of the informal Will were clearly inconsistent with the 2003 Will. Therefore, the informal Will revoked all previous Wills, including the 2003 Will.

In determining whether the Court could proceed on a copy of the informal Will, Crowley J considered whether the original Nomination of Beneficiaries Form was still in existence after the deceased’s passing.

The judge found that unchallenged evidence presented at trial explained that the original Nomination of Beneficiaries form was in existence after the death of the deceased and was subsequently submitted by the Plaintiffs when they attempted to make a claim on the deceased’s life insurance policy. The evidence also explained that the insurance company failed to retain the original document and why it was not able to be produced. The presumption that an original will was not produced because it had been destroyed by the deceased was overcome.

Crowley J determined that the documents titled “My Wishes” and “Nomination of Beneficiaries” form each dated 23 April 2021 was the informal Will of the deceased, the Plaintiffs be appointed as administrators of the estate, and ordered that the second wife pay the Plaintiffs’ legal costs.

Conclusion

Fortunately for the Plaintiffs, the deceased’s wishes were upheld. However, to reach this conclusion, this case involved Court proceedings, some 18 months after the deceased’s passing. The time, expense and stress caused by this process could have been avoided had the deceased updated his estate planning documents following his separation from his second wife.

We recommend you review your estate plan regularly or in the event of any big life changes, such as marriage, divorce, separation, birth of a child, and death of an executor, attorney, or beneficiary. It is also important to seek legal advice following a loved one’s passing regarding any informal documents left behind that could potentially constitute an informal Will. 

Further information / assistance regarding the issues raised in this article is available from the author, Bianca Stafford, Senior Associate or your usual contact at Moray & Agnew.