What is the risk of making handwritten notes to a copy of my Will?
January is often a time for reflection on the year past.
Perhaps you have recently decided that 2025 is the year you will update your last Will. You may be still considering the amendments that need to be made, the changes in your family circumstances, recent sales and purchases of assets and business events that have occurred since making your last will.
Like all things, it is not uncommon for those of us who still prefer the pen over the keyboard, to print a copy of a document and make handwritten changes and notes on the copy. After all, it is only a copy. When our thoughts are reduced to writing on a copy they are just that – our thoughts yet to be put into fruition, particularly when the document is a will and we know that the original will is safely tucked away at the solicitors office.
If only life was that simple!
A recent decision of the Supreme Court of Queensland in Linkenbagh v Turner [2024] QSC 316 is a timely reminder of the seemingly innocent thoughts reduced to writing can have on a deceased’s person’s estate.
The late Mr Hebblewhite passed away on 3 May 2024. He left a properly executed will dated 10 January 2013 with his solicitor’s office.
Two day’s after Mr Hebblewhite’s death, one of his executors, Carl Linkenbagh went to Mr Hebblewhite’s residence to sort out the deceased’s possessions. It was discovered that Mr Hebblewhite had left a folder containing papers including two annotated copies of the typewritten form of Mr Hebblewhite’s will marked “copy” and a further document marked “draft”. On the copy, it was discovered that there were two handwritten entries in Mr Hebblewhite’s handwriting, each bearing his initials. The handwritten entries were not witnessed by two witnesses, as required by the Succession Act 1981.
Whilst Mr Hebblewhite’s original will was unaltered, the issue before the Court was whether Mr Hebblewhite intended the handwritten “copy” to be his last will. The Succession Act 1981 provides power to the court on an application by a person concerned, to dispense with execution requirements for a will, alteration or revocation of a will. This dispensation power may be applied when a purported will has not been property witnessed. This power is engaged when:
- The document or a part of a document purports to state the deceased’s testamentary intentions; and
- The court is satisfied that the deceased intended the document or part of a document to form the deceased’s Will.
As you may appreciate, trying to ascertain a deceased’s person’s intention is difficult when presented with nothing more than unwitnessed handwriting appearing on a copy of a will. Evidence needs to be placed before the Court in order to support the applicant’s position. Further, the mere fact of the existence of the document does not of itself mean that the document was intended to be the deceased’s last will or embody their testamentary intentions.
When a document such as the above is discovered, it is proper for the executor to place the documents before the Court as part of the application for a grant of probate. Unfortunately, the court costs of an application can be considerable. In Mr Hebblewhite’s case, the costs included Mr Linkenbagh and the respondent’s legal costs, that were ordered to be paid out of Mr Hebblewhite’s estate on the indemnity basis.
The case is a timely reminder of the issues that can take place if estate planning is not handled with care. When contemplating changes being made to a Will, the best action that can be taken is to make an appointment with your solicitor and to discuss the proposed changes in a conference, following which the timely signing of the Will should then occur.
If you would like to review your Will or your estate planning arrangements generally, please contact Jarrad Mobbs or Sarah Meyer at MobbsMarr Legal on 07 4417 4417.