The Victorian Supreme Court recently handed down its decision in the in the Matter of the Will of Edward James Lynch. Bernie O’Sullivan Lawyers successfully acted for the defendant in this case.

Overview

In 2007 the deceased was admitted to hospital with chest pains. Whilst in hospital he completed several pieces of paper, one comprised a list of names and amounts next to each name and another referred to a last will and nomination of an executor. Despite recovering and going on to live for a further 8 years, the deceased did not make a new will during that period.

Issue

The two pages had not been signed, dated and witnessed in a manner that complies with the formal requirements of the Wills Act 1958 (“the Act”). However, the Act contains a remedial provision which enables the Court to accept a document as a will even though those formal requirements have not been complied with. The plaintiff (being the executor nominated by the deceased) applied to have the two pages described above accepted as constituting the deceased’s last Will and admitted to Probate. If the informal Will was refused by the Court, and there was no other valid will, the defendant and his siblings as the only next of kin were entitled to the estate pursuant to the rules of intestacy. On behalf of the defendant we argued the deceased did not intend the two documents or either of them to constitute his Will or, alternatively, the deceased intended the documents to amount to a conditional Will to only take effect in the event he died without being discharged from hospital.

Decision

The Court emphasised that an informal document can only be admitted to Probate if the deceased intended the document to be his or her last Will. The intention of the deceased is a matter of fact and each case depends on its own facts and circumstances. In this instance, the Court held that the evidence did not support the fact that the deceased intended the informal documents to be his final Will. At best, they were created by him thinking that he might die whilst in hospital in January 2007, which clearly did not happen.