will2

A recent case that reached the Supreme Court in the United Kingdom has highlighted the need for obtaining quality and specialist estate planning advice.

The Case of Signing the Wrong Will

Mr and Mrs Rawlings made wills before their deaths, which left everything to each other, commonplace for married couples. In the event that the other had already passed away, the entire estate was left to Mr Rawling’s stepson, Terry Marley. They made no provision for their own two sons in their wills.

Unfortunately, an error was made in that Mr and Mrs Rawlings signed each other’s wills instead of their own. This oversight wasn’t discovered until both had died.

Their sons contested the will, claiming that it was invalid, and that they should inherit the estate under intestacy (or as if they had died with no will) laws. Mr Marley, who undoubtedly had a negligence claim against the solicitor, was required by the solicitor’s insurers to bring proceedings to seek to have the will upheld as valid.

The trial judge and Court of Appeal found that there was no document which constituted a will, and that Mr and Mrs Rawlings had died intestate (or without a valid will). Accordingly, the estate would pass to all his children, despite the fact that this was clearly not what the deceased intended.

However, the Supreme Court found that the document Mr Rawlings had signed was clearly intended to be his wishes and that it satisfied the formal requirements of a will. As a result, Mr Marley received the entire estate and the two sons received nothing.

The decision of the UK Supreme Court is not binding on Australian courts, but it is an interesting case study in how even the most simple wills can end up in a ferocious estate battle. It also highlights the consequences of negligence on the part of the solicitor.

The Law in Queensland

In the state of Queensland, there are also laws which make provision for certain family members under a will. The people you ought to consider in your will include:

  • Spouse or de facto partner
  • Child
  • Step-child
  • Other dependents (in certain circumstances)

Therefore, although a will-maker may wish to exclude a child from the will for example, the law allows the excluded child to seek a share of the will. The child could very well be successful, meaning that the will-makers’s wishes are overturned.

That’s why it’s so important to seek specialist advice when writing your will. A specialist understands the complexities of the law and can advise you what could happen if your will is contested. And as this case illustrates, it’s also important that simple errors aren’t made.

We offer a free 10-minute phone consultation – contact us today.