Whether it’s convenience or costs, people still continue to prepare their own wills. It might be buying a will kit or typing their own will at home, whatever method that is used there are risks in homemade wills.
In Martin as Executor for the Estate of Korbl v Hurse 2021 WASC 488 this case highlights why people should not make a ‘homemade’ will.
Master Sanderson decision begins as follows:
“If these reasons were to bear a subtitle it would read as follows: The curse of the homemade will strikes again.”
Background
Jennifer Irene Korbl (deceased) died on 5 December 2019. The deceased left a will dated 17 August 2012. The Will was prepared by the deceased. The deceased appointed Eric Owen Martin (Eric) as her executor.
Pursuant to the deceased’s Will she disposed of the following assets:
Clause 2 read as follows:
Historical family photos and documents, my mother’s diamond engagement ring, best silver given me by my father, Meissen musical monkey china figures and my mother’s emerald dress ring are to remain with my daughter Simonne Christine Lydia Hurse – born 30 April 1984, unless otherwise sold by me. My childhood Bechstein piano is to receive utmost respect, having been willed to me by my father.
Clause 3 read as follows:
I GIVE the rest of my estate as follows:
To my daughter Simonne Christine Lydia Hurse, (nee Hurse) I give any property owned by me (in the name of Jennifer I Korbl) including all contents thereof. She is to receive half of all moneys banked in my name of Jennifer I Korbal. The other half I give to my grandchild Tilda Mae Setton, to be held in trust by my said daughter until Tilda reaches 21 years of age and is competent to handle the funds.
Eric was granted probate of the deceased’s Will on 31 March 2020.
In accordance with clause 3 of the deceased’s Will, Eric transferred the property to the deceased’s daughter.
Eric later located, in a safe at the property, cash and jewellery. The cash being held in term deposits with various banks with interest totalling an amount of $781,215.39. The combined value including the jewellery totalled more than $1 million.
Issue
Eric’s position was that the deceased’s will did not provide explicitly for distribution of the cash or jewellery and therefore in his capacity as executor he sought directions from the Court as to whether, on proper construction, the will makes provision for the distribution of the cash and the jewellery.
In the event that the deceased’s homemade will did not make provision for the cash and jewellery, this would result in a partial intestacy. This situation occurs when the will does not account for all the assets of the deceased and those assets are then distributed under the laws of intestacy.
Decision
Eric’s counsel made reference to clause 2 of the deceased’s will, where a specific item of jewellery was left to the deceased’s daughter. It was argued that this was a clear indication that only the designated item of jewellery was to be given to her.
The Court emphasised the value of the cash and jewellery and noted that, for whatever reason, the deceased did not see fit to explicitly deal with the assets in her will.
The Court considered whether the wording in clause 3 was wide enough to cover the contents of the safe and the remaining jewellery.
The Court noted that clause 3 referred to not only the property but “all contents thereof.” These words were sufficient to include the contents held in the safe. Despite reference to a specific item in clause 2, there was nothing in the evidence to suggest the deceased intended that there should be partial intestacy. The Court held that on a proper construction of the will of the deceased, the cash and jewellery owned by the deceased at the date of her death and found in a safe at the premises should be distributed to the deceased’s daughter in accordance with clause 3 of the will.
Takeaways
The case highlights the potential difficulties encountered when dealing with a homemade will. If the deceased visited a solicitor, she would have been questioned as to what assets were to pass on her death and the will would have contained a clear direction as to how her assets were to be distributed. As noted by the Court, in the above case engaging a solicitor to prepare the will would have cost significantly less than the cost of the court proceedings.
~ with Sean Hollis, Graduate at Law
