An Ink Mark Cost A Couple $4.5 Million In Inheritance

In 2011, under a duly executed will, Mr Howard Edwin Thomas (Deceased) appointed his long-term friends, Mr and Mrs Nightingale as executors of his estate upon his demise. The Will gifted Mr and Mrs Nightingale the residue of the estate after all debts, funeral arrangements and testamentary expenses were settled. The Deceased’s friends were to receive a pecuniary amount of nearly $4.5 million dollars, but for an unsightly ink splodge. It was determined by the Court, that the ink splodge sought to redact names from the original Will and therefore amend the ultimate outcome of the millions of dollars within the estate. 

Background

The Deceased sought to have a will professionally drafted by a law firm in March of 2011 and in doing so, attended his lawyer’s office to duly execute the Will. The terms of the Will were simple. In summary, I leave everything to my friends, Mr and Mrs Nightingale.

The Deceased had no surviving parents, grandparents, siblings, aunts, uncles, nephews, or nieces but did have six surviving cousins. One of those cousins sought to void the Deceased’s Will by commencing proceedings in the Supreme Court of Victoria.

If successful in voiding the Will, the result would be that the cousins would have an interest in the estate and they would become beneficiaries of the estimated $4.5 million.

Issues

The Deceased’s original Will was marked with ink, in what seemed to be an attempt by the Deceased to cross out the names of Mr and Mrs Nightingale. There were no other markings to the Will and no other executor or beneficiaries were identified to replace Mr and Mrs Nightingale. 

The main issue of contention before the Court was: Were the markings found on the original Will of the Deceased an intention to revoke it.

The Court considered how and when a will can be revoked.  The following provisions of sections 12(2)(da)–(g) of the Wills Act 1997 are relevant to revocation of a will:

1. by a later will; or
2. by some writing, declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act; or
3. by the testator, or some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it; or
4. by the testator, or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied, from the state of the will, that the testator intended to revoke it.

In this case, the reliance was solely placed on that the Deceased had revoked the Will by ‘writing on the will or dealing with the will in such a manner that the Court [could be] satisfied, from the state of the will, that [he] intended to revoke it’. Further, that the Court may be satisfied with something less than express words declaring an intention to revoke, and with something less than the physical destruction of the will.

The Court found that the markings effectively obliterate the names of the executors and beneficiaries, on its face stripping the Will of its essential elements. Essentially, evidencing an intention of the Deceased to revoke the Will in its entirety.

The Will was found to be revoked and therefore the Deceased died intestate, meaning, without a will.

The Cousins therefore becoming beneficiaries of the estate assets.

Storage of your Will

An important lesson must be taken from the case of Howard Edwin Thomas and the Nightingales, in that, a duly executed will can be deemed invalid by a Court in the instance of a simple ink splodge.

Keeping your last testamentary documents free from marks and damage is important to preserve the enforceability of the will upon your demise.

Simple steps can be taken to ensure your will is kept safe:

• Store your will in a safe (Lavan can store any will we have drafted in our safe for life);
• Ensure that the will is not marked with ink, creases or other scuff marks and is safely away from the risk of water or fire damage;
• If you would like to make changes to your will, use a copy of the will to review;
• If you find the will is marked or damaged, write a note to explain why it was marked and contact a law firm as soon as possible to redraft a will for you.

At Lavan we offer to store our client’s wills for free for life.

If you or your family require assistance with estate or succession planning please contact Iain Freeman or Kerri Evangelista on 9288 6000.