Home cooked: why home-made Wills are a recipe for disaster

The recent decision of Master Sanderson in the West Australian Supreme Court case of James Edward Donnelly As Executor of The Estate of Sarah Shulman v Donnelly¹ highlights the risks of individuals making home-made wills and not getting the benefit of legal advice.

Background

In August 2012, Ms Sarah Shulman made a will using a ‘will kit’ form which had blank spaces for the will maker to complete (Will).   

However, as the Master noted at the outset “the deceased’s will is meaningless. Even adopting the most benign interpretation of the will it simply does not in its terms provide any benefit for the first defendant.”²

The attempt at drafting

In clause 2 of the Will, Ms Shulman appointed Mr James Edward Donnelly (Mr Donnelly) – a relative of the deceased, as the executor by inserting his name and address. 

Clause 4 of the will kit was intended to deal with the provision of specific bequests.  It contained various subclauses for completion.  Ms Shulman had ticked the box in clause 4 (a), but had not named a beneficiary. 

Clause 5 of the Will, which was intended to deal with the residuary estate, was left blank.

Mr Donnelly applied to the Court, as plaintiff in his personal capacity, seeking a direction directing him as executor of the Will as to whether the Will gave him the entire estate, either by specific bequest, or as the intended residual beneficiary, in circumstances where no specific gifts were made in the Will.

The second defendant, Mr Melville Stanley Brodie (Mr Brodie), had not had any contact with Ms Shulman for many years, and they were estranged.

Mr Donnelly’s application was supported by four affidavits.

Mr Brodie did not present any evidence.

The Will

Master Sanderson found that Ms Shulman’s Will was legibly written³, and in most respects, it was executed and witnessed in accordance with the requirements of the Wills Act 1970 (WA) (‘the Act’). 

Mr Donnelly argued that the ‘tick’ used to appoint him in clause 2 (which also contained his name and address) and the ‘tick’ in clause 4 and the space for the beneficiaries’ address, were sufficient to import that he was the intended beneficiary under clause 4 – i.e. this was essentially importing the name and address of clause 2 into clause 4.  However, Mr Donnelly was only named as the executor – aside from clause 2 he was not mentioned at all.⁴

Master Sanderson held that this was "hardly an ambiguity" and instead would “require a leap of faith which is unjustified”.⁵ 

Interpreting the Will

Pursuant to section 28A(1) of the Act extrinsic evidence is admissible when the will (or a part of it) is, among other things, meaningless or ambiguous.

However, as the Master outlined:

The first step is to read the will on its own without regard to any evidence.  If this does not lead to an interpretation of the will then an attempt must be made to deduce the intentions of the testator. If those intentions cannot be readily discerned for any reason then the court should proceed to construe the will with the assistance of cannons of construction.⁶ 

The Master held that Will was not ambiguous; it was simply silent.  In the Master’s words, “It is meaningless”.⁷

Accordingly, under section 28A(1)(a) of the Act, extrinsic evidence was available to clarify the Will.

The Court then examined the extrinsic evidence presented by Mr Donnelly.  Relevant evidence related to three matters:

What Ms Shulman told Mr Donnelly about the contents of her Will.

•  Mr Donnelly deposed that Ms Shulman had told him she had visited a library to make her Will and she had left everything to him. The Court accepted this evidence was direct evidence of the testator’s intention.

Discussions which Ms Shulman allegedly had with her neighbour before signing her Will.  

• The second defendant objected to this evidence on the basis that there was no specific date given.

• Master Sanderson found that the evidence suggested the witness had known Ms Shulman for about 31 years and, based upon the manner in which the paragraph in the affidavit was framed, it was “reasonable to assume the discussions took place before the Will was signed”.⁸

What Ms Shulman said to another witness, at the time she signed her Will.

• However, the portion of the affidavit in which the witness (Mr Grace) tried to explain what he understood Ms Shulman meant by the words was struck out.

The Master commented that the available evidence was not highly persuasive. However there was no other evidence which was put against it due to the second defendant’s decision not to lead any evidence.

Ultimately, the Master was satisfied that Ms Shulman intended to leave her estate to Mr Donnelly.

Lavan Comment

This case is a strong reminder of the importance of having a properly drafted will.  Whilst a will-kit may seem like a straightforward alternative to engaging a lawyer to draft your will, there are often important considerations which can be overlooked.