A Will, or Not?

Often, documents which are intended to be wills are prepared in haste, or trying circumstances.

A recent decision of the Supreme Court of Victoria (Re Lynch, Supreme Court of Victoria – Judgment delivered on 9 December 2016) is instructive as to whether a document is a will, or not.

The Facts

Mr Lynch died in July 2015 following a car accident aged 78.  His estate was comprised of assets worth approximately $2.5 million.  Mr Lynch was divorced at the date of his death and did not have any children.  Mr Lynch’s next of kin were his deceased brother’s three adult children.

Some eight years before his death, Mr Lynch prepared a 2-page handwritten document whilst he was a patient of the emergency department of the Alfred Hospital in Melbourne.

A friend of Mr Lynch contended that the documents made by Mr Lynch whilst he was in hospital were intended to be Mr Lynch’s will.

One of the pages purported to appoint Mr Lynch’s friend as executor.  Mr Lynch’s friend, and others, were to receive substantial legacies under the documents prepared by Mr Lynch.

Applicable Principles

Ordinarily, for there to be a valid will, the will must be signed by the willmaker in the presence of two witnesses.

The documents prepared by Mr Lynch in the hospital did not satisfy the requisite formalities to be admitted to probate, because Mr Lynch did not sign the documents in the presence of two witnesses.

However, the relevant legislation (section 12(2) of the Wills Act 1936 (SA)) allows a will that fails to meet the requisite formalities to be admitted to probate as long as the Court is satisfied that:

(a)          the document expresses the testamentary intentions of a deceased person; and

(b)          the deceased person intended the document to constitute his or her will.

The Victorian decision turned on whether the documents prepared by Mr Lynch on or around 19 January 2007 were intended by Mr Lynch to be his will, and involved an analysis of the provision in Victoria which is equivalent to section 12(2) of the South Australian Wills Act.

The Trial

The Court heard evidence from three friends of Mr Lynch who were present at, or around, the time when the documents were prepared by Mr Lynch.

The Court also considered evidence as to discussions which Mr Lynch had with his friends as to the fact that he should consult a solicitor to prepare a will, during the years following his discharge from hospital.

Consideration of the facts

The Judge looked at the content of the documents and found that:

  • it was difficult to conclude that there was a sufficiently strong connection between a page on which Mr Lynch signed his name and purported to appoint an executor, and a second page which purported to provide a list of beneficiaries;
  • the evidence of the friends who observed Mr Lynch preparing the documents to be contradictory and inconsistent;
  • the evidence of the friends was disjointed and was not capable of providing a consistent version of the events which led to the preparation of the documents (which were on different pieces of paper and different pens were used);
  • the possible reasons proffered for Mr Lynch not reviewing or revising his testamentary dispositions over the eight year period between his admission to hospital and his death were speculative;
  • the evidence did not support the contention that Mr Lynch intended the informal documents to be his will forever more, but rather they were created by him thinking that he would solve the immediate problem concerning the possibility that he might die whilst in hospital in 2007 and that he accepted, after that date, that the documents should be reviewed;
  • on balance, Mr Lynch did not intend the documents to have the effect of his final will and to operate as his final will;
  • accordingly, the friends’ application for a grant of probate of the pages prepared by Mr Lynch at hospital was dismissed, and the estate was distributed in accordance with the “Rules of Intestacy”, being the law which applies when a person dies without a will, and in this case Mr Lynch’s estate was distributed evenly between his nieces and nephews, and not the “list of beneficiaries” referred to in the document prepared by Mr Lynch in hospital.

What can be drawn from this case?

This case largely turned upon its facts, but based on the evidence heard by the Judge, she was not prepared to find that the documents prepared by the deceased in hospital were intended to be his will.

There was evidence led at the trial that Mr Lynch had an aversion to formalities and lawyers in general.

There was also evidence led at the trial that Mr Lynch did not want his nieces and nephews to benefit from his estate, although that evidence was uncorroborated and the Judge made a finding that there was no evidence to suggest that the relationship between Mr Lynch and his nieces and nephews was acrimonious.

That said, it seems unlikely that the distribution of Mr Lynch’s estate under the Rules of Intestacy actually reflected Mr Lynch’s wishes as to how his estate should be distributed.

To provide clarity, and to avoid the costs of litigation, the best outcome would have been if Mr Lynch had made a simple will which complied with the formalities for making a valid will under the Wills Act.

One thing is clear—it is unsafe for a person to rely upon the remedial provisions under the Wills Act which enable a Court to dispense with the formal requirements for the execution of a will when admitting a will to probate, as it is open to the Court (as in the case of Mr Lynch’s “will”), to find that a document was not intended by the deceased to be his will.


Charles Beresford

1 May 2017