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Document your intentions correctly to avoid challenges to your Will

Published: Mar 18, 2013 | Author: Chloe Kopilovic

I recently read the Queensland Supreme Court decision of Gamer v Whip [2012] QSC 209 (30 July 2012), in which the Court had to decide whether a particular document was an informal codicil to the deceased’s will, a renunciation of a beneficial interest in another person’s will, or an assignment of an interest in an Estate. It highlights the importance of correctly documenting your intentions to avoid a challenge to a Will.

Background

The facts of this case are as follows:

  • Prior to her death, Ms Atkinson left a detailed will leaving a specific percentage of her estate to Ms Page and other parts to Janet Christiansen and Monica Jensen. Ms Atkinson passed away on 26 October 2011 and Probate was granted.
  • When Ms Page found out she was a beneficiary of Ms Atkinson’s will, she was very ill and frail.  Accordingly, she decided to write to the Executor of Ms Atkinson’s will, advising that she would like her share to go to the other two beneficiaries.
  • The Executors of Ms Page’s estate brought the matter to court for determination and submitted there were 3 possibilities:
    1. That the document was an informal codicil to Ms Page’s Will; or
    2. That the document constituted a “disclaimer” or “renunciation” of Ms Page’s entitlement under Ms Atkinson’s will; or
    3. That the document was an “assignment” of Ms Page’s interest in Ms Atkinson’s estate.
  • Ms Page’s step-son (a minor and beneficiary of Ms Page’s Will), argued that the document should form part of Ms Page’s estate.

The Courts Decision

After consideration, the Court decided that the document was not an informal codicil or a disclaimer or renunciation.  The Court found that the Ms Page intended to assign her interest in Ms Atkinson’s estate to the other named beneficiaries.

Seek Legal Advice

The matter is an important reminder to seek proper independent legal advice when contesting or disputing a Will. It also shows the need to consult an experienced estate planning solicitor when you want to amend your Will.

If you require assistance with making a new Will, or updating an existing Will, or if you are a beneficiary or executor of an estate, it is important to obtain experienced advice from an estate planning lawyer. Please do not hesitate to contact me if needed as challenges to your Will can have a big impact.

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