They Never Updated Their Wills; Now What?

In the recent case of Martin as Executor for the Estate of Korbl v Hurse [2021] WASC 488 (Korbl v Hurse) Master Sanderson explores the interpretation of a home written will. The decision he tagged ‘the curse of the homemade will strikes again’.

The Case

In May 2022 the Supreme Court of Western Australia handed down its decision in Korbl v Hurse, a case involving an application requiring the Court to interpret the terms of a homemade will. Ms Korbl (the deceased) left a homemade will leaving her property and ‘all contents thereof’ to her daughter. Ms Korbl also left a specific ‘emerald dress ring’ to her daughter. When her daughter found a safe in the property with cash and jewellery of up to $1,000,000, the applicant sought to argue that some jewellery had been specifically named and left to the daughter, and Ms Korbl must not have intended to leave all the contents and jewels in the safe to her daughter. However, Master Sanderson found that the wording of the will, particularly, ‘the property… including all contents thereof’ was broad enough to encompass the safe within the property.

This case highlights some of the key issues with homemade wills and the importance of having a well drafted will. As pointed out by Master Sanderson, if Ms Korbl had ‘gone to a solicitor… under questioning from a solicitor, she would have mentioned the cash and jewellery and the will could have been drawn so as to distribute these assets in accordance with her wishes.’ Master Sanderson also noted that ‘it would not have been a difficult will to draw…’ and ‘certainly the expense would have been less than the cost of taking these proceedings’.

Takeaways

• A home-made Will can be found invalid due to vague terms of a will. If the terms are found to be invalid, unreasonable legal costs can be incurred. Appointing a solicitor to draft your will can avoid those costs.
• The lack of certainty towards the wording, intention and circumstances around the Will, may lead to some hefty litigation, which would be more costly than initially investing in getting a will properly done.
• The lack of certainty in the wording may mean the will is interpreted as making gifts that were unintended.
• A lack of compliance with the Wills Act 1970 (Wills Act) can render them invalid, in which case the estate is distributed in accordance with a fixed statutory scheme and not as intended.
• Concerns around the possibility for fraud and coercion, which may influence the Court’s interpretation of the will. The formalities of the Wills Act serve an evidentiary and  protective functions.

Seek a professional

In light of the above, there is value in engaging a professional to draft your will. The cost of having a will professionally prepared is generally a small fraction of the value of an estate and always far less than the legal fees of a dispute.

A professional will ensure the will complies with the formalities and requirements of the Court.

A law firm can also store a will for you for life, safeguarding the document from accidental damage, or from it being lost.  It is worth understanding that it can also be harder to obtain a grant of probate with a DIY will kit or a homemade will. An unclear will can place undue stress on your family during a difficult time.  

Lavan comment

Here at Lavan we can assist with drafting a simple will or a complex will with testamentary trusts. If you have questions in relation to drafting a will, please do not hesitate to contact Iain Freeman.