The procrastination that accompanies the need to put one’s estate in order is notorious.

Consider the case of a wealthy deceased whose indecision has a good chance in resulting in her multimillion-dollar estate being forfeited to the government on intestacy.

1489880921169The case concerns an application to the court for the making of a statutory will for an incapacitated and infirm person. As usual in such matters, the identity of the person for whom the court was being asked to make a will was concealed. We’ll call her Margaret Smith.

Margaret – 92 years old and “on the verge of death” – was receiving palliative care at St Vincents Hospital in Sydney.

Her husband had died in July 2020 at the age of 98. They had lived together in a $7.2 mil North Bondi home that contained on the same title a separate residence.

Neither Margaret nor her husband had any surviving family. Their last surviving relative had been Margaret’s sister-in-law who predeceased both of them.

Those with whom they had interacted were the tenant of the separate residence (call him Bill) and Patricia Wills who was a good friend of Margaret’s as well as a neighbour.

Margaret’s financial affairs were largely managed by the NSW Public Trustee from February 2020.

Formal wills were made on 29 August 1999 by both Margaret and her husband.

They left their entire estates to each other but made no provision for what would happen when the last of them died. Thus according to the rules of intestacy where no family survived, Margaret’s estate would – under that will – pass to the NSW Government.

Bill however claimed that Margaret’s husband had made a another formal will in December 2018 – the provenance of which was ‘doubtful – leaving everything to him. He sued for his entitlement.

That litigation was settled on the basis that Bill receive $250,000 with everything else going to the NSW Public Trustee on behalf of Margaret.

In contrast, Margaret had not made any other “formal” will despite attempts made for her to do so.

Patricia Wills agitated for solicitors to be engaged to prepare a will in accordance with wishes expressed since her husband had died.

The appointed solicitors made various attempts to obtain instructions for a will, but were unsuccessful.

Their file notes showed that they considered Margaret had the capacity to make a will, but that she had declined to give instructions. At different times she said that she did not know to whom to leave her estate; did not trust her neighbours; and was antagonistic to Bill due to the purported 2018 will.

They warned her that if no new will was made her estate would pass to the government under the existing will. Although Margaret appeared not to “want this to happen, she was apparently not greatly troubled by it.

According to Patricia, Margaret made an “informal” will in September 2021 when in a nursing home and in the presence of a nursing staff member.

The evidence before Justice Geoff Lindsay of the New South Wales Supreme Court was that Margaret had dictated the terms of the informal will to Patricia who “wrote down precisely the words as dictated”.

Margaret then signed the document in the presence of both Patricia and the staff member. Neither of them though, signed as witnesses. The terms of this document were that the entire estate passed to Patricia.

Perhaps not satisfied with the validity of that will, Patricia applied to the court for a “statutory will” to be made in her favour.

His honour found Margaret did not have the capacity to make a will and that the court in those circumstances could make one for her, but refused to do so because he was not satisfied – as he was required to be – that the proposed will was one that she would have made.

In this regard he resorted to the solicitor’s file notes that clearly showed that Margaret had been given the opportunity to make a will but declined to do so notwithstanding that Patricia would be a “worthy recipient”.

Patricia lost that round, but the contest over the informal will is yet to be decided.

Even if the informal will claim  fails, Patricia can apply – as a person who claims to have a just or moral claim – for the State to exercise its discretion to waive its rights as intestate beneficiary so that she would receive the estate in its place. There is of course, no certainty that such discretion would be exercised in Patricia’s favour.

Wills v NSW Trustee [2022] NSWSC 1098 Lindsay J, 17 August 2022 Read case