Many an attempt to make what appears to be a will unconventionally or informally falls short of a valid will because it does not meet minimum legal requirements.
Unfortunately this was the case in relation to the estate of Erika Kaegi-Fluri who – when she died – was survived by her only daughter, Juliana Wool.
In her first will made in December 2013, she left the whole of her estate to Juliana.
Juliana and her husband had a tumultuous falling out with Erika in 2017 – that lead them to sue her – over the financial arrangements they had made for Erika to reside with them in Cairns.
The ensuing litigation eventually resolved, but not the disaffection that it brought.
Erika moved back to Mackay to live out her days quietly in a retirement village.
She made a new will in 2018 and a further final will in 2020. Juliana’s name appeared nowhere as beneficiary in either document both of which were accompanied by a statement of Erika’s reasons for leaving no benefit to her daughter.
The last will bequeathed the estate in one-third shares to the RSPCA and two friends, Micael Johannsson and Adam Anderson.
Shortly after Erika’s death in July 2022 in Mackay, Charles Marino – her executor – applied for it to be admitted to probate.
Julia intervened however, claiming there was a subsequent will.
A note had been found in Erika’s bedside drawer. The note appeared to state Erika’s testamentary intentions, leaving her estate to Juliana. English was not Erika’s first language, but the intention seemed quite clear.
The note read:
“DEAR JULIANA
I AM CHANGING MY WILL!
KIM ADAM AND MICAEL HAVE ABANDEND ME. RSPCA LET ME DOWN.
I LEAVE THE HOUSE AND ALL MY MONEY TO YOU JULIANA. I GO TO HOSPITAL NOW. WHEN I GET BETTER I MAKE A NEW WILL WITH A LAWYER. NO MONEY MUST BE PAID TO RSPCA, MICAEL OR KIM AND ADAM. I CANCEL THE CAIRNS WILL
SORRY MY HANDS GETTING SORE.
I LOVE YOU VERY MUCH YOU ARE MY ONLY DAUGHTER YOU ARE ALL I HAVE NOW.
I WRITE THIS LETTER IN CASE SOMETHING HAPPEN TO ME. SORRY I AM VERRY TIRED.
I CONTACT YOU FROM HOSPITAL.
I LOVE YOU MORE THAN ANYTHING IN THE WORD! YOUR MOTHER,
[…Erika’s signature…]Mackay 6.6.2022”
The note appeared to be an informal will, and so Juliana asked the Supreme Court to admit the note to probate as Erika’s last will.
To prove the note as a valid informal will, Juliana needed to be able to convince a judge that the document embodied her mother’s testamentary intentions and by some act or words, had demonstrated it was to operate as her will of itself.
The matter came before Justice James Henry in the Supreme Court of Queensland at Cairns.
The judge was troubled by evidence that Erika may have had undiagnosed dementia; her health issues just prior to going to hospital may have affected her mental capacity to make a will; and Erika was emotions could fluctuate with her mood.
He concluded that the note “at best provides some support for an inference Erika intended it to operate her will”. That said, “it provides at least equally strong support for the inference Erika merely intended the note to inform her daughter of her regret and change of heart and her plan to reflect that by making a new will”.
Juliana failed in her attempt to have the note declared to be a valid informal will.
Despite that, Juliana’s cause is not entirely lost as she has a pending family provision claim contesting her exclusion from the 2020 will, which her mother’s note will likely go a long way to support.