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What happens when you don’t have a clear Will?


Getting your Will done is the first step in the Estate Planning process. However, it is also important to ensure that it is done correctly and clearly with the help of an experienced succession lawyer. In this blog post, we review the key learnings of the Lewis v Lewis [2020] NSWSC 1306 case.


This case highlights sibling dispute over the validity of their mother’s Will, as well as the issue of poorly constructed Wills, complicated elaborate clauses, too many codicils, and lawyers that do not adhere to standards.


Lewis V Lewis Background


The Plaintiff, David, was seeking Probate on his mother’s December 2014 Will and two 2015 codicils. Peter, the defendant, claimed his mother did not have testamentary capacity when these documents were created and did not understand or approve their contents. Peter sought Probate on a 2011 Will, along with two of the four following codicils. Both parties claimed if the Court found these Wills invalid, then the July 2010 Will should be admitted for Probate.

Below is a summary of the issues the Court highlighted.


Valid Execution of a Will


Peter, a solicitor, prepared the 2011 Will. It contained similar provisions to the testator’s previous Wills, with some minor changes. He sent the Will to his mother for review, arranging to travel later to execute the document. Peter claimed he read the Will to his mother and advised two neighbours would be over to witness her signature. Peter then went out. On return he found the document signed and his mother had gone to bed. Peter secured improper endorsement of the Will by asking the neighbours to witness the pre-signed document. Peter’s action had put the validity of this Will at risk, not to mention his career.


Lawyer Competence


Between 2012 and 2015, several of the testamentary documents were prepared by Mr Rickard, a solicitor initially sourced by David. Although Mr Rickard was engaged for the Testator, the Court found he was being instructed by David. Mr Rickard had not requested the Testator state her wishes in her own words and regularly used clauses constructed by David in the testamentary documents. The line was blurred on who Mr Rickard was representing and did not question the influence David had over the document creation.


Plain English Construction


Many of the clauses David created expanded his power as Executor and ability to limit his siblings share of the inheritance. Some clauses were so convoluted the Court could not determine how they would work in practice. Other clauses were redundant due to the nature of how trusts work, or the asset it referred to was not the testator’s to give away, which could risk the validity of the entire document.


Codicils


Codicils are rarely beneficial for minor changes to a Will. In this case codicils on top of codicil created layers within the Will and as a result varied its intention. Some clauses made it more difficult to interpret the Will or impacted its function. The Court had to consider each codicil clause and assess if it was valid and could be actioned if required, discarding those that could not.


The Court admitted part of the 2014 Will along with three clauses of the August 2015 codicil into Probate. The 2010 and 2011 Will were used to confirm the testator’s testamentary capacity, but were not included in the Probate.


This case shows how important it is to have a Will that is clear and concise to protect your wishes.


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