Under the Succession Act (NSW), the court has power to declare a document which is not executed in accordance with the formal requirements to be the Will of a deceased person. This issue was recently dealt with by the Victorian Court of Appeal and more recently the NSW Court of Appeal. In the Victorian case, an elderly lady in a nursing home wanted to alter her 2010 Will. She gave instructions to her solicitor and the solicitor prepared the new Will, phoned her and told her it was ready and summarised its contents. The elderly patient then told the solicitor that she wanted him to come to the nursing home with the new document as soon as possible so that she could sign it. The solicitor said he was going away but someone else could bring in the document. The elderly patient did not want that as she wanted to see her solicitor. Unfortunately, the elderly patient died before the solicitor went into the nursing home.
The Court of Appeal in Victoria held that the document prepared, but unsigned, was intended by the deceased to be her Will.
A similar issue arose in the NSW Court of Appeal in a recent decision where the court confirmed that the question to be considered is not whether an unsigned document expresses the wishes of the deceased, but whether it was intended without more to be a Will.
These types of issues can create problems for the family of the deceased, as there can be conflict between family members as to who would benefit under the Estate, depending on whether the document is accepted by the Court as a Will. It is therefore always prudent to try and act swiftly in preparing and executing a final Will.
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