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Can We Opt to Follow Original Will Instead?

Discussion in 'Wills and Estate Planning Law Forum' started by david craker, 19 August 2016.

  1. david craker

    david craker Active Member

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    My mother died in January this year and left a will, making my wife and I executors of her deceased estate that she had originally created with a solicitor in 2010.

    In 2014, she changed the will in front of a JP and struck a line through the section of the will that handed a sum of money to a beneficiary that she no longer wanted to have in the will for personal reasons. The amount was for $1000.

    There are 2 other beneficiaries mentioned as recipients of the small funds to be distributed from the proceeds remaining. Sadly and mistakenly, she did not write a new will or have any other witnesses to the codicil changes of this original 2010 will with the changes made of 2014.

    The Supreme Court in Victoria has recognised the changes but requires a mountain of red tape in order to act on the changes.

    This process may cost the estate, as we are told in excess of $3000 to undertake the paper trail and gather affidavits from the JP as to the knowledge of the reason for the changes and with the beneficiaries accepting the changes of the codicil.

    I wonder whether it would be better and more prudent to simply process as to her original will of 2010 as the proper document, to pay the $1000 benefit to the beneficiary struck off the invalid but known will that was changed in 2014 and to wind up the estate.

    It just seems futile to continue to go down a longer paper trail to process the changed will document and although she is dead, I know personally that my mother would have gone down the road of least resistance and saved the grief, time and money.

    Are there any thoughts as how to proceed?
     
  2. Tim W

    Tim W Lawyer

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    Firstly, my sympathies.

    Am I correct in thinking that there is as yet no yet grant of probate?

    For the benefit of other readers (since it seems that you already know),
    as a general thing, only the most recent valid Will will be operative.
    It's not clear to me from your post above whether she did create a valid codicil.
    That may not be clear to the court, either.

    In such cases, the court will usually attempt to strike a balance
    between the technical requirements for a valid will, and any (what lawyers call) "defects"
    that would get in the way of your mother's "testamentary intention".
    That is, the court will try (so far as the law allows) to give effect to what she meant to have happen,
    even if she didn't get the super-fine technicalities strictly, literally, narrowly, correct.
    The court has a discretion in respect of the formalities (take a look at section 9 of the Wills Act 1997 (Vic))

    The "mountain of paperwork" to which you refer sounds like it might be
    the bundle of evidence that the court will use to work out what her intentions actually were
    (along with some procedural documents).

    The things you want are
    • finality in things generally; and
    • no late-in-the-day family provision claims; and
    • peace in the family; and
    • an eventual return to normality in your lives.
    If there remains, after the funeral and the final bills, an otherwise reasonable amount
    for distribution for the other intended beneficiaries, and your co-executor genuinely agrees with you,
    then the price of that finality is a simple one thousand dollars.

    Can I also suggest that, when it's all over, you write to the Attorney General
    and make sure that that JP gets a talking-to?
     
    david craker likes this.
  3. david craker

    david craker Active Member

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    Firstly, my sympathies.

    Am I correct in thinking that there is as yet no yet grant of probate?

    No grant of probate, I read it from the letter the court has sent us as that they have accepted the changes to her will are or were her wishes and that the changes can stand but, in order to get the grant of probate they wish us to notify every one of the beneficiaries in turn (including the one struck off) and work with these three other beneficiaries (and their legal departments) in getting the one struck off to accept they have been ruled out of the changed will (2014) and they all accept the changes as her wishes or codicil of the will..

    We have the copy of the original from the solicitor and have the changed will which the court has taken and accepted.


    For the benefit of other readers (since it seems that you already know),
    as a general thing, only the most recent valid Will will be operative.

    I was hoping that they would accept the most recent one (2014 with changes) as it was her express wishes at the time but they require us to go through the paperwork for it to be valid.

    It's not clear to me from your post above whether she did create a valid codicil.
    That may not be clear to the court, either.

    In such cases, the court will usually attempt to strike a balance
    between the technical requirements for a valid will, and any (what lawyers call) "defects"
    that would get in the way of your mother's "testamentary intention".
    That is, the court will try (so far as the law allows) to give effect to what she meant to have happen,
    even if she didn't get the super-fine technicalities strictly, literally, narrowly, correct.
    The court has a discretion in respect of the formalities (take a look at section 9 of the Wills Act 1997 (Vic))

    The "mountain of paperwork" to which you refer sounds like it might be
    the bundle of evidence that the court will use to work out what her intentions actually were
    (along with some procedural documents).

    The court lay out all the necessary documents and statements required if we proceed with the second will but the difference is only one beneficiary and $1000 that we could simply pay off for a better word and process this along.

    These other beneficiaries are not individual people but organisations that wish to involve their legal teams to make sure they get what they deserve and want to get into the process of paper correspondence regarding the matter, we simply wish to pay them what has been gifted to get them off the books and out of the way.


    The things you want are
    • finality in things generally; and
    • no late-in-the-day family provision claims; and
    • peace in the family; and
    • an eventual return to normality in your lives.
    If there remains, after the funeral and the final bills, an otherwise reasonable amount
    for distribution for the other intended beneficiaries, and your co-executor genuinely agrees with you,
    then the price of that finality is a simple one thousand dollars.

    This reads like the final wash up would be up to us as Executors to how we proceed and simply need to notify the court that we will act using the first will as the valid document?

    Can I also suggest that, when it's all over, you write to the Attorney General
    and make sure that that JP gets a talking-to?

    We have spoken with the JP and she is aware that a better job with the will would be necessary in future and a couple of witnesses would not go astray in will signings.
     

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