Dying without a will often leads to inheritance disputes, but having too many documents outlining your final wishes can also create problems.
Unfortunately, this is what happened when a 93-year-old man died following a stroke in 2013. He had written two official wills, one in the 1960s and the other in 1983.
In the 1983 document, the man made his wife sole executrix and beneficiary of his $1 million estate, which included properties in New South Wales and Arizona, US.
However, a letter written in 1994 – and later amended in 1999 – was also found in a folder containing the wills. This made several key adjustments to the 1983 will, with the 1999 changes leaving his wife nothing and splitting the estate 50/50 between his son and daughter.
A fourth potential will, which was found behind a desk in the deceased’s home, outlined his desire to make his son the only beneficiary. Written in 2007, the document was made at a time when the man had fallen out with his daughter.
Challenging a will
NSW Supreme Court was asked to decide which of the documents should be considered the official will of the deceased.
The wife, who was the plaintiff and cross-defendant, sought an order that probate be granted in relation to the 1983 will. However, the couple’s son argued in favour of the 2007 document.
Crucially, while the 1983 will was signed in front of two witnesses, the 2007 document had only been signed, not witnessed.
The son’s legal team claimed that the official nature of the 2007 document and the fact that it had been amended several times – with each change initialled – showed the deceased’s intentions that it be considered his last wishes. On the other hand, the plaintiff’s lawyers said the man, who was known to be meticulous, would have known witnesses would be needed to make a will valid.
In addition, they highlighted the fact the document was not kept with the other wills in the same folder and questioned why the man had failed to mention its existence to any family members.
Ultimately, Supreme Court Judge Rowan Darke rejected the idea that the 2007 document constituted the deceased’s final will and granted probate in respect of the 1983 version.
“I consider it unlikely that [the deceased], being aware of the need for two attesting witnesses, would have considered that the 2007 document was itself capable of operating as a valid will,” he explained.