DIY wills often survive contests over their legal validity but invariably put the will-maker’s estate to enormous expense to establish their legitimacy.
Leslie Turnbull died on 8 October 2022 with no spouse and one living child, Alexander.
Having been diagnosed with terminal lung cancer in late-2017 or early-2018, he was advised to put his affairs in order.
Leslie obtained a DIY will form of the type sold by newsagents.
He completed the form with directions as to the distribution of his assets before two friends who signed as witnesses. But at no stage did Leslie actually sign the will himself.
Leslie’s estate consisted of $147,000 in bank funds and homes at Lawnton and Everton Hills.
The will form appointed his brother Ken to be executor and provided a specific gift of “my car” to friend Lee Hornby who was one of the two witnesses of to the will.
Everything else was left to Alexander.
Where a will is signed in accordance with statutory formalities and requirements, it is presumed to be valid unless proven otherwise.
On that basis the vast majority of applications for probate are dealt with relatively inexpensively by the Probate Registrar without a court hearing.
But where there is contention or uncertainty, the issues are likely to be referred to a judge of the Supreme Court for determination.
In Leslie’s case the executor had to ask the Supreme Court to issue a grant of probate in respect of his ‘informal will’.
The court was prepared to accept the that the document stated the will-maker’s intentions and that it was ‘testamentary’ in nature.
But whether or not Leslie intended it to constitute his will really depended on whether or not he had intentionally deferred signing it, or whether that was in oversight.
There were some differences in the recollection of the two witnesses in that regard.
Witness Hornby recalled “Leslie said to me that he would get us back together again at a later time to finish signing it properly”.
The other witness, Stephanie Wood swore that Leslie had said to her “words to the effect that he would sign the purported will after I left”.
Justice Peter Davis had to weigh up all available facts.
“The evidence is strong that Leslie intended the will to be effective immediately and operate upon his death,” he concluded, pointing to the facts that he was terminally ill when he had made it and that he had later told Ken of all its terms.
The judge also noted the will was found where the will-maker had been seen to place it – inside a “buffet” cabinet where he kept important documents.
“Had Leslie changed his mind and not wished to execute the will, he would surely have destroyed it rather than keeping it in a safe place with other important documents,” Justice Davis observed.
Ultimately, the judge was satisfied that the surrounding circumstances demonstrated Leslie’s intention that the unsigned document was intended to be his will.
Not only did the DIY will cause the estate enormous expense, the exercise took nearly 9 months to resolve.