A Current Affair: 'Will Battle'

Wills and Estates: 23 March 2019

Last night (13 August 2014) A Current Affair presented a story about a man who passed away in New South Wales leaving a signed letter which was accepted as his final Will. The letter was not witnessed and no executor was named.

The deceased's nearest surviving family was his cousin's wife. She alleged that the document was not authentic. She did not believe the signature used by the deceased was his correct signature. She also claimed to not know the man named as sole beneficiary of the estate. The presenter interviewed a couple of people in the neighbourhood who also claimed to not know the sole beneficiary.

Concerns were raised about the process the Court takes in terms of "investigatingthe authenticity of a Will and notifying the family of the deceased. The Court will not accept a Will unless it complies with legislation. The executor must advertise their intention to apply to have the Will formalised. To an extent, it is presumed that a member of the family will know to look for this advertisement. In this case, the nearest family member did not know the deceased had passed away for two years. You can challenge the authenticity of a Will but there is only a short time frame in which to do so. See our upcoming article: How do you contest a Will?

There are a range of moral arguments alleged (if the facts alleged by the nearest family member are correct) as to why the decision made by the Court is not 'right'. The presenter did say that the family member was obtaining legal advice. There are mechanisms to challenge a Will and that will addressed in the upcoming article: Do you believe you deserved more from an estate?

The program glossed over the fact that the deceased's superannuation was also paid to the sole-beneficiary of the estate, despite the family member being named on the policy. See our most recent article: Where will your super be paid. This article explains why a situation where the deceased family member, despite being named on the policy, would not have received the superannuation.

The lessons to learn from this are:

1. If you are aware of a close friend or family member passing away and you have concerns about their Will or assets, seek legal advice immediately. There is a short time frame during which you can act.
2. It is imperative to have your Will and succession planning up to date and prepared by a solicitor. Encourage family members to have their Wills prepared or updated. A solicitor will be the only person who can fully advise you as how to, and the ramifications of, preparing a Will in the way you wish.
3. Be aware that a person can prepare a Will themselves and, despite it not complying with all formal requirements, this could still be held by a Court to be a final Will.
4. Your super may not be paid where you have nominated to the fund where it should be paid. Seek legal advice if you have concerns about this.

Disclaimer: this article has been written on the assumption that the facts presented by A Current Affair are correct. No separate investigation has been made by us into the authenticity and correctness of the facts of the matter presented. This matter has only been used by Aitken Partners by way of an example to its website users. 

The ACA article can be viewed here...