Homemade will-kit

I saw a will-kit (a sample attached below) for the first time during my university days back in the late ’90s. The first edition of this form was published in June 1997. You can still get this one from the Australian Post Office for about $34.99. It must have been quite popular. Recently, I found out that Australian Post Office also distributes another type of will-kit at a cheaper price for $29.95.

On 3 July 2020, the Supreme Court of Western Australia delivered a decision concerning a homemade will of the late Sarah Shulman - James Edward Donnelly As Executor Of The Estate Of Sarah Shulman -V- Donnelly [2020] WASC 254.

One James Edward Donnelly commenced proceedings pursuant to section 92 of the Trustees Act 1962 (WA) and sought orders to take the entire estate of the late Sarah Shulman. Mr Donnelly was named the executor and trustee of her estate. I am unable to confirm if the deceased had used one of those available for sale at the Australian Post Office. Given its description by the court, it bears some resemblance to the one attached below.

Based on the facts of the case:

1. In clause 1, which contains “testator's details” (i.e. name and address), the deceased wrote her full name and address.

2. In clause 2, which is the clause that appoints the executor of the will and trustee of the estate, she filled in Mr Donnelly’s full name and address. The learned Master Sanderson observed that there were 'ticks' adjacent to Mr Donnelly’s name and address in both clauses 1 and 2.

3. In clause 3, which is a clause to appoint a guardian of minor children, she struck through with the letters 'N/A'. The deceased never had any children.

So far, so good.

The following clauses 4 and 5 are the “object” clauses. They are supposed to inform its readers and the executor/trustee as to whom she had wished to leave her legacies – as a provision of special/specific gifts (in clause 4) and residue of the estate (in clause 5).

As clear as day, she left unaltered and unmarked the words “I leave the following special gifts free of all duties and charges to:” in clause 4. Below those words and in the spaces, no names inserted or written. Instead, as the learned Master observed, there were:

a. Ticked (but otherwise, those spaces were left blank) in sub-clause (a); and

b. Crossed and struck through in columns (b) and (c) with the letters 'N/A' added.

As for clause 5 entitled “Residuary/Residue of my Estate”, she left blank and struck it through with the annotation 'N/A'. Again, no names inserted or written.

She wrote the word 'Testator' on the bottom of page one adjacent to her signature. On page 2 however, she struck through the word 'Testator' and left the alternative form 'testatrix'. The gender of the late Sarah Shulman was not an issue. No sensible lawyer will run arguments just because "she" was referred to "he". But a careful lawyer drafting a will would have used the gender reference consistently. Why leave it to the court to interpret the context required?

In the overall, Master Sanderson found that the deceased wrote legibly within the lines and spaces provided and the will was otherwise executed and witnessed in accordance with the requirements of the Wills Act.

One John Oswald Grace was a witness to the will. He came forward and swore a supporting affidavit that the late Sarah Shulman personally made those ticks, crosses and other annotations before she executed the will. Mr Grace also gave evidence of what was said by the deceased to him at the time of the will was signed, which was to leave it to Mr Donnelly.

The problem was that Mr Donnelly was nowhere in the will mentioned as a primary beneficiary or a residuary beneficiary. Apart from being named as the executor of the will, Mr Donnelly was not mentioned at all. No-one was named in clause 4 and clause 5.

The learned Master said this case did not raise a question of the will is ambiguous. He gave an example where ambiguity might be apparent if a testator were to leave his property to 'my nephews' who survive him, but in fact, did not have and had never had any nephews.

The learned Master said it was only silent as to who was to benefit. Apart from appointing Mr Donnelly as executor, the will had no content and made no disposition, hence it was meaningless.

But Mr Donnelly’s counsel had a different view. He argued that Mr Donnelly was nonetheless the primary beneficiary under the estate and hence was entitled to the estate, applying the principles of construction of a will, as follows:

The first step is to read the will on its own without regard to any evidence. If this does not lead to an interpretation of the will then an attempt must be made to deduce the intentions of the testator. If those intentions cannot be readily discerned for any reason, then the court should proceed to construe the will with the assistance of cannons of construction.”

Relying on these principles, the counsel argued that those ticks which appear next to Mr Donnelly’s name and address in clause 2 and clause 4(a) and spaces were “sufficient to import the name and address in clause 2 into clause 4.” [emphasis mine]

The learned Master took the pain to scrutinise the supporting affidavits from Mr Donnelly, the witness Mr Grace, and also one Dianne Kathryn Boulden.

Ms Boulden was a friend of about 31 years and a neighbour of the deceased. She took care of the deceased over a number of years. She came to support Mr Donnelly’s application and gave evidence that:

1. The deceased went to the United Kingdom to visit Mr Donnelly.

2. The deceased told Ms Boulden that her other relatives had all long gone.

3. On several occasions, the deceased told Ms Boulden that she had a will, and that was to give everything to Mr Donnelly.

The learned Master considered the weight of the admitted evidence and found that:

1. The deceased told Mr Donnelly about the contents of her will.

2. Ms Boulden had discussions with the deceased about her will before the deceased signed her will.

3. What the deceased said to Mr Grace took place at the time the deceased signed her will.

4. There being no contact between the deceased and any relatives other than Mr Donnelly such as would suggest someone else was to benefit under the will.

The learned Master said he was satisfied that the deceased intended to leave her estate to Mr Donnelly. Interestingly, Master Sanderson acknowledged that the available evidence was not highly persuasive. But he could not find other evidence which could be put against admitted evidence.

Had the deceased known of the trouble Mr Donnelly had to go through, would she have gone to see a lawyer and spend a few hundred dollars more (as opposed to $34.99)?

Series 0070727 | © J Lee, LLB. LLM. Senior Associate. JAC Lawyers. LIABILITY limited by a scheme approved under Professional Standards Legislation. DISCLAIMER: The above article does not take into account your situation/circumstances and is for general reading, hence should not be relied upon if you are dealing with a legal issue or matter. We urge that you contact our legal team for appropriate advice.

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