The unmaking of a Will – the need for strict compliance with the formalities for cancelling (revoking) a Will

Bartier Perry acted for the successful plaintiff in the recent case of Re Estate Miruzzi [2018] NSWSC 1899.  The case highlights the need for strict compliance with revocation formalities before a Will is validly cancelled.  Justice Lindsay in his judgment cautions Will-makers and Will-drafters alike, suggesting Will revocation may be best left to the legal profession when he says at paragraph [66]:

“…this case suggests that, if the making of a will prudently warrants the direct involvement of a lawyer trained in the art, so too may the unmaking (revocation) of a will.”

The “art” of unmaking a Will is not one that should be overlooked or treated lightly.

Facts of Re Estate Miruzzi

Richard Miruzzi died on 6 March 2016, aged 87. 

Whilst the deceased was a serial Will maker, it was understood by his solicitor (Mr Kennett) that by late November 2015, he had destroyed all his previous signed Wills, and only left an unsigned Will dated 2016, leaving his entire estate to the Children’s Hospital. 

In the months preceding his death, the deceased showed a predilection to gift his estate to his long-term friend, Leonie Rigney.  However, a falling out between them in November 2015 led to the deceased “destroying” what was believed to be all previous Wills gifting Leonie his estate.

Three weeks prior to his death, the deceased and Leonie reconciled their relationship and the deceased indicated to Leonie that he wanted to make a Will leaving everything to her.  On 16 February 2016, the deceased arranged an appointment to see Mr Kennett on 18 February 2016.  Mr Kennett stated the purpose of this appointment, according to his conversation with the deceased at the time, was “to execute (or sign) the will”, understood to be the 2016 Will leaving his estate to the Children’s Hospital. The deceased’s accountant, whose office was to be utilised for the appointment on 18 February 2016 believed from his conversations with the deceased, contrary to Mr Kennett, that he did not intend to sign the 2016 draft Will at the appointment.

Before he could finalise his testamentary intentions, the deceased was admitted to hospital on 23 February 2016 after a fall, rapidly lost capacity and died in hospital without having signed any further Wills.

In July 2016, Mr Kennett found an original Will dated 17 August 2015 (the 2015 Will) in his office.  The Will left everything to Leonie.  Previous correspondence from Mr Kennett to the deceased confirmed the deceased was only ever sent a copy of the 2015 Will.

Leonie commenced proceedings to have the 2015 Will admitted to probate.  The Children’s Hospital cross-claimed on the basis that the 2016 draft Will was an informal Will which pursuant to section 8 of the Succession Act 2006 (NSW) could be admitted to probate.  It also argued the deceased destroyed a copy of the 2015 Will on the mistaken belief he had destroyed the original.

The second defendant to the proceedings, who was the deceased’s former spouse, argued that neither document should be admitted to probate, that the deceased died intestate, and because she was the deceased’s de facto at the date of death, should receive the whole estate on intestacy.

The Court was asked to decide:

1. Whether the 2016 draft Will was an informal Will pursuant to s 8 of the Succession Act?

2. If no, whether the 2015 Will was revoked by the deceased?

Decision

With respect to the first question, his Honour said for the 2016 draft Will to be admitted to probate, “the deceased’s testamentary intention must be found not in any initial instructions given to Mr Kennett but in an intention (as at or about the time the deceased contemplated an appointment “to execute, or to sign, the will”) manifested by the deceased on or about 16 February 2016”.  This is because his Honour believed the evidence suggested the deceased, whilst having requested the draft to be sent to him, did not have a settled testamentary intention at that time. 

The Court was not satisfied that the mere making of an appointment meant the deceased intended to adopt the document as his Will with immediate operative effect. Justice Lindsay was of the view the deceased’s intention to benefit the Children’s Hospital over Leonie was not settled at that time either, noting the fact he had not signed the document and he had reconciled with Leonie.

His Honour went on to say:

“More probably than not, the deceased intended to make no new will unless and until he executed a formal will.  His established pattern was to make formal wills.”

With respect to the second question – whether the 2015 Will had been revoked – his Honour concluded the evidence suggested that only one original version of the 2015 Will existed, and consequently, if any 2015 Will was destroyed by the deceased, it was only the copy version.    

His Honour did not think that the destruction of the photocopy was sufficient for revocation and said:

[63]   Destruction of a photocopy of a will, even if believed by a testator to have been the original of the will, is not destruction of “the will” for the purpose of s 11(1)(e).  The legislation requires an actual destruction of the will.  An act of constructive destruction, by destruction of a surrogate of the will, is not sufficient to effect a revocation pursuant to section 11(1)(e).  To paraphrase Cheese v Lovejoy (1877) 2 PD 251 at 253, a “symbolic destruction” of a surrogate photocopy of a will is insufficient to satisfy the requirements of section 11(1)(e). 

[64] Destruction of an original will in the mistaken belief that it is merely a copy does not effect a revocation because an intention to revoke is missing:  Re Wright [1970] QWN 28.  Destruction of a photocopy of a will in the mistaken belief that it is the original does not effect a revocation, pursuant to section 11(1)(e) of the Succession Act, because there is no act of destruction affecting the will itself.

The importance of revocation

Whilst lawyers are usually involved in the process of Will making, they are often excluded from the revocation process.  The failure to properly revoke a Will can be just as detrimental to an estate as the failure to properly execute a Will.

Specifically, his Honour said at paragraph [59]:

“The formalities of revocation of a will are no less important to due administration of an estate than those governing the making of a will.  The intention to make a will and the intention to revoke a will are paramount; but, in practical reality, some formality is required at each stage of estate administration so that the requisite intention can be conveniently verified.”

This case demonstrates it is an intrinsic part of estate planning that lawyers advise their clients carefully when instructions are received for revocation to be undertaken independently by the Will-maker with limited knowledge of revocation formalities.  This risk can best be managed by clearly clarifying and documenting the Will-maker’s revocation intention prior to the signing of a formal Will containing the usual revocation clause. 

Authors: Danielle Verde & Gerard Basha