The Facts

Old man in habit of making many wills

In the years prior to his death at the age of 87, a man instructed his solicitor on a number of occasions to prepare a draft will for him. It was the man's practice to attend to signing and witnessing of a draft will received from his solicitor himself, prior to returning the completed will to his solicitor for safe keeping.

In 2015 the man made a will leaving everything to his friend of many years' standing.

Solicitor drafts new will leaving man's estate to large Sydney hospital

However, following a falling out between the man and his friend late in 2015, the man destroyed a photocopy in his possession of the 2015 will in favour of his friend and instructed his solicitor instead to prepare a will leaving everything to an institutional charity, being a large Sydney hospital.

In a phone conversation with his solicitor around this time, the man also mentioned that he intended to "leave some gifts to a couple of old friends".

After receiving the draft will leaving everything to the hospital from his solicitor, the man made an appointment to meet with his solicitor and his accountant in early 2016 to sign the will.

The solicitor understood from this conversation that the will to be signed was the 2016 will leaving everything to the hospital. However, the man's accountant, who had also spoken to him, did not think that this was the case. In any event, the man never signed the draft 2016 will.

Original 2015 will unearthed by solicitor following man's death

Sadly, the man died in March 2016. In the weeks before his death, the man and his friend reconciled their relationship. The man expressed to his friend the desire to make a further will, again leaving everything to her. No such will was prepared.

However, some months after the man's death, his solicitor found in his office the original 2015 will in which the man left everything to his friend.

Friend of deceased commences legal proceedings

The man's friend commenced proceedings in the Supreme Court of NSW, claiming to be entitled to the man's estate by virtue of the original 2015 will which had been found in the office of his solicitor.

However, the hospital challenged the friend's entitlement to the man's estate. The challenge was on the basis that when the man destroyed his photocopy of the 2015 will, his intention was to cancel this will, and accordingly the draft 2016 will, even though unsigned, should be recognised as the last record of the man's testamentary intentions.

case a - The case for the friend

case b - The case for the charity
  • When my friend died, he only had one will which had been formally executed. In this will, my friend left his estate to me.
  • It is true that my friend and I had a falling out in 2015. It was at this point that he had a new will drawn up in favour of a charity.
  • My friend had no prior connection to the charity and considered leaving his estate to the charity purely at the suggestion of his lawyer.
  • My friend and I subsequently reconciled and he never signed the new will.
  • My friend spoke to me on a number of occasions of his intention to leave his estate to me.
  • The court should recognise this as what he wanted done with his estate and should admit the formal will to probate.
  1. The deceased's most recent expression of his intentions is contained in his most recent will, in which he left his estate to our charity.
  2. The deceased gave instructions to his solicitor to revoke and destroy all previous wills which had been made by him.
  3. The existence of a signed will in the files of the solicitor was an administrative oversight. This will should have been destroyed and the deceased was not aware the solicitor had it.
  4. The deceased had made an appointment to have the new will formally executed at the offices of his solicitor, but was forced to cancel that appointment due to ill health
  5. The deceased intended that the new will should be effective immediately and the court should admit this will to probate.

So, which case won?

Cast your judgment below to find out

Case A ✔

Case B ✔

Tony Mitchell
Will disputes
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.