Harry makes a Will, using a home-made Will kit, leaving his Smith Street property to his daughter, Wendy.
The Will makes no reference to Harry’s other assets.
Wendy had been living with Harry and assisting with his care.
A few years later, Harry obtains a reverse mortgage, due to financial pressures.
The mortgage is registered over the Smith Street property.
When Harry is diagnosed with cancer, he decides to sell the Smith Street property and downsize, purchasing a unit with the surplus funds after the mortgage is repaid.
Wendy and Harry move into the unit. Wendy assists with the household expenses and continues to provide daily care to Harry.
When Harry passes-away, a number of issues arise.
The meaning of the Will becomes a bone of contention and two of Harry’s other children claim to be entitled to provision from his estate.
Wendy claims to be entitled to the unit, while the other children say that in the circumstances where the Smith Street property has been sold, the gift of the property to Wendy fails.
Proceedings are commenced in the Supreme Court and 18 months later, the matter proceeds to a hearing.
Numerous affidavits are filed addressing the circumstances surrounding the making of the home-made Will and Harry’s conversations with the various family members.
Ultimately, the Court rules that despite the Will failing to refer to the gifting of the unit to Wendy, she shall receive the unit outright.
The Court also rules that the relatively small balance of Harry’s estate is to be divided amongst all of his children, equally, on the basis of the rules of “intestacy”, which apply when a Will fails to address the whole of the deceased’s assets.
The other children’s claims for further provision are dismissed.
The Court states that the use of home-made Will kits carry “risks” which often “materialise”.
These risks are also present in on-line platforms purporting to offer cost-effective Will making services.
The legal costs, the stresses of litigation and the associated delays could have been easily avoided.
This fictional column is not legal advice.
By Manny WOOD, Solicitor
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