The purpose of formalities

  • Main formalities — Succession Act 2006 (NSW) s 6:
    • writing,
    • execution, and
    • attestation.
  • Formalities prevent and discourage fraud and undue influence.
  • Formalities emphasise the solemnity of the will-making process and encourage people to give due consideration to what happens to their property after death.

Wills made outside NSW

  • The Succession Act 2006 (NSW) pt 2.4 applies to testators dying after 1 January 1978.
    • A will made outside NSW is valid under s 48 if:
      • it conforms to the law of the territory where it was executed (including other countries, and states or territories of the Commonwealth),
      • it conforms with the law of the territory where the testator was domiciled or habitually resided at the time of execution or death, or
      • it conforms to the law of the country of which the testator was a citizen at the time of execution or death.
    • These provisions remove the common law rules relating to movable and immovable property.
  • International wills are governed by the Succession Amendment (International Wills) Act 2012 (NSW) s 2.4A:
    • This gives effect to the Convention providing a Uniform Law on the Form of an International Will, opened for signature 26 October 1973, [2012] ATNIF 1 (entered into force 9 February 1978).
    • The Annex to the Convention forms sch 2 of the Act.
    • s 50B gives the Annex force of law in NSW.
    • A will made in accordance with arts 2–5 will, under art 1, be valid regardless of where it is made, the location of the assets, or the nationality, domicile or residence of the testator, provided it is made in the form of an international will.
    • Formal requirements of an international will closely resemble those required of a will generally in NSW.
      • Principle difference is that it requires witnessing in the presence of an authorised person being a legal practitioner or public notary who must then give a certificate in the prescribed form as to the making of the will, as well as two witnesses.
      • The certificate is conclusive evidence of the formal validity of the will absent evidence to the contrary.
    • A will made outside Australia that does not comply with the requirements of an international will may still be valid under s 48 of the Succession Act 2006 (NSW).

Presumption of due execution — omnia praesumuntur rite esse acta

  • If a will is prima facie regular and duly executed, there is a rebuttable presumption that the formal requirements have been complied with: Re Unsworth; McLeod v Burchall (1972) 8 SASR 312, 318 (Bray CJ).
  • The presumption applies where there is no proof one way or another of due execution: Re Bladen [1952] VLR 82; Will of Kimbell [1969] 1 NSWR 414.
  • The presumption can apply where the witnesses are unavailable or mistaken, or even where both deny execution: Re Bladen [1952] VLR 82.
    • The court must still be unable to decide the question of due execution, however: Will of Kimbell [1969] 1 NSWR 414. See also: Sullivan v Mouglalis [2008] NSWSC 1326; Estate of Dampf v Dampf [2010] NSWSC 619.
  • If the will is prima facie irregular, there is less force to the presumption: Re Unsworth (1972) 8 SASR 312. See also Estate of Handfield [2010] SASC 22; Estate of Westwood [2014] SASC 23.
  • The longer the period that elapses since the purported execution, the more reliance is placed on the presumption compared to recent executions: Estate of Robertson [1964] NSWR 1087.
  • The presumption does not apply where there is an issue as to whether the testator in fact signed the will (ie in the case of forgery): Burnside v Mulgrew; Re Estate of Grabrovaz [2007] NSWSC 550 [25].

Writing

  • A will must be in writing: Succession Act 2006 (NSW) s 6(1)(a).
  • Writing “includes printing, photography, photocopying, lithography, typewriting and any other mode of representing or reproducing words in visible form”: Interpretation Act 1987 (NSW) s 21.
  • A will may be written on any substance and in any language, and may be written in code so long as it is decipherable: Estate of Slavinskyji (1988) 53 SASR 221.
  • Wills may be written in ink or pencil, but if both are used there is risk that the pencil will be interpreted as not intended to form part of the will: Goods of Adams (1872) 2 LR P & D 367.

Signature

  • A will must be signed by the testator: Succession Act 2006 (NSW) s 6(1)(a).
    • A forgery cannot amount to the signature of the testator.
    • The onus of proving the testator signed the will is upon the person propounding the will.
    • A party opposing a grant of probate does not need to affirmatively establish forgery — it is sufficient for a court not to be convinced that the testator had in fact signed the will: Burnside v Mulgrew; Re Estate of Grabrovaz [2007] NSWSC 550. See also Ortner v Mewjork; Estate of Shing [2009] NSWSC 1381.
  • The signature must be affixed with the intention of giving effect to the will: Succession Act 2006 (NSW) s 6(2).
    • An initial or part of a signature may be sufficient if the intent is to give effect to the will: Re Male [1934] VLR 318.
    • Marks made without such intent are not signatures.
    • Attempted signatures of injured or ill persons can suffice if part of a signature and with the necessary intent: Dodd v Lang (Unreported, Supreme Court of New South Wales, Needham J, 20 July 1989); Summerville v Walsh [1998] NSWSC 52.
    • A signature includes signing by another person in the testator’s presence and at their direction: Succession Act 2006 (NSW) s 6(1)(a).
      • The other person may be a witness: Goods of Bailey (1838) 163 ER 316.
      • The other person may sign their own name or that of the testator: Goods of Clark 163 ER 428.
      • The direction of the testator and the signing by the other person must be done in the presence of the witnesses: Burke v Moore (1875) 9 IR Eq 609.
    • If a person died after 1 November 1989, the signature does not need to be at the foot of the will and it may be signed anywhere, so long as it is not merely for the purpose of identification: Succession Act 2006 (NSW) s 6(2).

Several sheets of paper

  • An unsigned sheet of paper may be regarded as part of a will if it is demonstrated that it formed part of a single testamentary document.
  • There is a rebuttable presumption that even if the witnesses did not see the whole will and the will is signed on only the last page, all sheets were in the room and under the testator’s control at the time of execution: Marsh v Marsh (1860) 164 ER 845.
  • Where all sheets are found fastened at death, they are presumed to have been fastened at execution: Marsh v Marsh (1860) 164 ER 845.
  • If not all sheets are signed the question is whether the testator intended the signatures were intended to give effect to the will or whether they were for identification: Sweetland v Sweetland (1865) 164 ER 1416.

Signature on a separate document

  • If a separate document is shown to be ‘connected’ to the will, the court may be satisfied that it is part of the will: Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 705.
  • The signature must be placed with the intention of giving effect to the will.
  • A signature on an envelope may be sufficient — Goods of Mann [1952] P 146:
    • the envelope had a closer relationship to the will than a separate piece of paper,
    • the signature of the envelope was in the same pen as the will, and
    • the envelope was signed in the presence of the witnesses.

Attestation

  • A witness to a will can be any person who is competent to be a witness in civil proceedings other than a blind person (because cannot see the testator sign): Estate of Gibson [1949] P 434; Succession Act 2006 (NSW) s 9.
  • The testator must sign or acknowledge their signature in the presence of two or more witnesses present at the same time: Succession Act 2006 (NSW) s 6(1)(b).
  • At least two of the witnesses must attest and sign in the presence of the testator, but not necessarily in the presence of each other: Succession Act 2006 (NSW) s 6(1)(c).
  • An acknowledgment of a signature occurs where the testator has already signed the will but informs the witness that it is there signature, and does not require a particular form of words to be used: Goods of Davies (1850) 163 ER 1337.
  • A witness must be able to see the testator’s signature or be able to do so if they chose to look: Re Groffman [1969] 1 WLR 733.
  • A witness cannot acknowledge their signature, must sign in the presence of the testator.
  • No attestation clause is necessary but is desirable so as to indicate that the witnesses signed as witnesses: Succession Act 2006 (NSW) s 6(3).
    • An ambiguous attestation clause may give rise to doubt that the will was properly executed: Estate of Westwood [2014] SASC 23.
  • A witness must intend to sign as a witness and there is a rebuttable presumption that a signature placed on a will by a person other than the testator is the signature of a witness: Estate of Bravda [1968] 1 WLR 479; Willgoss v Ward (1921) 22 SR (NSW) 61.
  • A witness must intend to attest to the operative signature of the testator and not a copy: Re Lucas [1966] VR 267.
  • It is not necessary that a witness knows they are attesting to a will — provided they intend to attest something: Succession Act 2006 (NSW) s 7.
    • Consequently, a witness does not need to be shown the contents of the will.

The witness-beneficiary rule

  • As a general rule, a gift to an attesting witness is void: Succession Act 2006 (NSW) s 10(2).
    • Only the gift is void, not the remainder of the will.
    • This rule applies only to ‘beneficial gifts’ and not gifts to a witness as trustee: s 10(1).
    • The rule does not apply to a beneficiary who writes their name without intent to be a witness: Estate of Bravda [1968] 1 WLR 479.
  • A professional charging clause will be void under s 10(2) if the solicitor witnesses the will: Sacks v Gridger (1990) 22 NSWLR 502, 513.
    • This will not apply if the solicitor’s partner witnesses the will, as the benefit flows from the partnership agreement rather than the will: Re Bunting; Re Poindexter [1974] 2 NZLR 219.
    • The same is true for an employed solicitor: Re Oberg [1952] QWN 38.
  • There are a number of exceptions to the rule — Succession Act 2006 (NSW) s 10(3):
    • where there are two other witnesses who are not beneficiaries,
    • where all persons who would benefit directly from the avoidance of the gift consent in writing to the gift, or
    • where the court is satisfied that
      • the testator knew and approved of the gift, and
      • the gift was freely and voluntarily given.
  • A beneficiary needs to allay the suspicion of the court that the testator may not have known and approved of the gift, consistent with the circumstances: Miller v Miller (2000) 50 NSWLR 81, 86.
    • The onus of proof lies on the beneficiary to show that the testator knew and approved of the gift and made it freely; presumptions of knowledge and approval may be relied upon: Miller v Miller (2000) 50 NSWLR 81, 86.
    • There must be an absence of improper conduct.
    • A gift does not need to be free from any form of influence, but must be free from improper influence: Tonkiss v Graham [2002] NSWSC 891.
    • The presence of the witness-beneficiary at the execution of the will makes it possible that they may exercise improper influence upon the testator; this possibility must be dispelled by demonstrating that the gift was at the testator’s own volition: McKinney v Campbell; Estate Campbell [2003] NSWSC 244.

Incorporation

  • A document may be incorporated into a will — Allen v Maddock (1858) 14 ER 757:
    • there must be adequate description to enable identification,
    • the document must be in existence at the time the will is executed, and
    • the document must be referred to in the will as already being in existence.
  • The document does not need to be in writing — an audio tape can be incorporated: Tracey v Edwards (2000) 49 NSWLR 739, 747.
  • Where incorporated, the document is treated as testamentary and must be construed together with the will.

Secret trusts

  • Secret trusts may be fully- or half-secret.
  • Fully secret trusts occur where the beneficiary receives a prima facie absolute gift under the will on the understanding that it is to be held in trust, though the trust is not disclosed in the will.
    • Such a trust can be enforced in equity on the basis that equity will prevent the named beneficiary from taking the gift in denial of the trust where the testator had acted in reliance of the acceptances of the trust.
  • Half secret trusts occur where the trust is stated in the will, but not the beneficiaries: Vogues v Monaghan (1954) 94 CLR 231.
    • A trust should be distinguished from precatory words.
    • The person taking the beneficial interest takes pursuant to the trust and not under the will — it is not subject to the:
      • witness-beneficiary rule: Re Young [1951] Ch 344, or
      • doctrine of lapse if they predecease the testator: Re Gardener [1923] 2 Ch 230.
  • A fully secret trust of realty does not need to be in writing — it operates as a constructive trust: Dixon v White (Unreported, Supreme Court of New South Wales, Holland J, 14 April 1982).
  • A half-secret trust of realty must be in writing as it is an express trust.

The dispensing power

  • The court may dispense with formalities and admit a will to probate: Succession Act 2006 (NSW) s 8.
    • This applies to a will if the testator dies after 1 November 1989.
  • The court can dispense with compliance with formalities provided:
    • there is a document,
    • the document embodies the testamentary intentions of the deceased, and
    • the court is satisfied that the deceased intended the document to constitute their will.
  • The authorities decided prior to the Succession Act 2006 (NSW) are relevant to s 8 as the statutory provisions are sufficiently similar: Estate of O’Dell [2010] NSWSC 678 [30]; Estate of Johnson [2010] NSWSC 382; Bell v Crewes [2011] NSWSC 1159 [23].

Requirement for a document

  • The dispensing power does not apply to oral statements.
  • Succession Act 2006 (NSW) s 3(1) adopts the definition of ‘document’ in the Interpretation Act 1987 (NSW).
    • A document for the purpose of the dispensing power includes, inter alia, ‘anything from which sounds, images or writings can be reproduced with or without the aid of anything else’.
    • This view was adopted in Tracey v Edwards (2000) 49 NSWLR 739, 745.
  • Writing upon a wall may be sufficient: Estate of Slavinskyji (1988) 53 SASR 221.
  • Statutory declarations may be sufficient: Pahlow-Silady v Silady (Unreported, New South Wales Court of Appeal, 22 April 1997).
  • A bank deposit slip has been rejected as an informal will: Estate of Madden (Unreported, Supreme Court of New South Wales, Needham J, 20 July 1990).
  • Video tapes can be a document, provided there is the requisite intent for it to be a will or codicil: Cassie v Koumans; Estate of Cassie [2007] NSWSC 481.
  • A DVD is a document and can constitute an informal will: Estate of Wilden [2015] SASC 9.
  • A file/document on a computer disk can be admitted to probate if all other requirements to dispense with formalities are satisfied: Yazbek v Yazbek [2012] NSWSC 594; Will of Tretheway [2002] VSC 83; Mahlo v Hehir [2011] QSC 243.
  • A will written on a phone has been held to constitute an informal will: Re Yu [2013] QSC 322.
  • Two different types of document may together form an informal will: Estate of Wilden [2015] SASC 9.

Intended to constitute the deceased’s will

  • The document sought to be admitted to probate must be the document itself, not another in similar form: Baumanis v Pravlin (1980) 25 SASR 423, 426 (Mitchell J).
    • There is a distinction between documents that state a testamentary intention and those that are intended to operate as a will without more: Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446.
  • The document must be construed in light of other correspondence; a letter that is part of a chain of discussion about inheritance will be insufficient: Ghan v Ghan [2014] SASC 176.
  • It is insufficient that the deceased merely formed an intention that the document is the will that they wish to have executed, or that that document contains their final testamentary wishes: Rowe v Storer [2013] VSC 385.
    • The intent must go further to demonstrate that the deceased intended the document to be the will and to operate as such: Bell v Crewes [2011] NSWSC 1159 [43]. Compare to Mitchell v Mitchell [2010] WASC 174; Deeks v Greenwood [2011] WASC 359.
  • The document need only be intended to form the deceased’s will, and does not need to be formally incorporated into the formal will.
    • A document can operate in conjunction with a formal will in the absence of any intention to revoke in either document: NSW Trustee & Guardian; Estate of von Skala [2012] NSWSC 872.
  • A solicitor’s draft will can be admitted to probate if the deceased has approved it as constituting their will, but died prior to executing the engrossed copy (unless the intent was that it not operate until executed): Application of Kencalo (Unreported, Supreme Court of New South Wales, Powell J, 23 April 1993).
    • Notes of the deceased’s intentions that have not been shown to or approved by the deceased cannot be admitted to probate: Re Brown; Estate of Springfield (1991) 23 NSWLR 535.
  • The presence of a signature is strong evidence of intention, but not conclusive: Re Rosaro [2013] VSC 531.
    • This is especially true where the deceased has a habit of signing most of their papers: Burge v Burge [2014] NSWSC 1772.
  • A blank but executed will that is later completed by the testator can be regarded as a will if the testator intends it to be a will at the time of completion: Zang v Middleton; Estate of Cook [2011] NSWSC 881.
  • A document that was not intended to operate as a will when created may be admitted to probate if the deceased subsequently intends it to operate as their will: Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446, 469 (Priestly JA); Re Rosaro [2013] VSC 531.
    • Once the intention is formed, the document becomes testamentary and does not cease to be unless revoked in accordance with the Succession Act 2006 (NSW): Hatsatouris v Hatsatouris [2001] NSWCA 408.
  • Usually a document intended to constitute a will remains their will until properly revoked: Leslie v McDowell [2000] NSWSC 727 [43]; Estate of Pearson [2014] SASC 77.
    • It is possible that the testator’s intention is conditional on a particular event: Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR 330.
    • Stop gap wills may be intended to operate until there is an opportunity to see a solicitor (ie a conditional will): Estate of Moran; Teasel v Hooke [2014] NSWSC 1839.
  • The document itself must be submitted, not a copy.
    • A computer file cannot be admitted if there is a signed and printed version intended to be the will: Mahlo v Hehir [2011] QSC 243.
  • To determine intention, the court will look at statements made by the deceased as well as the form and nature of the document, where it was found and any importance the deceased attached to it: Costa v Public Trustee of NSW [2008] NSWCA 223.
  • The document must be intended to operate as a will and not inter vivos: Re Grindrod [2014] QSC 158.
  • The knowledge of the deceased as to formalities may be relevant — a person who has made a formal will is likely to know of the necessary requirements and not intend a document that does not meet those to be their will: Burge v Burge [2014] NSWSC 1772.
  • A solicitor who fails to advise a client of the possibility of making an informal will in the interim while a formal document is being prepared may be negligent if the client dies before execution, at least where the solicitor is aware of circumstance indicating imminent death of the testator: Maestrale v Aspite [2012] NSWSC 1420; Gray v Hart [2012] NSWSC 1435.
  • Normally where the actions of the deceased have led to a situation that results in litigation (eg an informal will), the costs of all parties come out of the estate: Shovelar v Lane [2012] q WLR 637 [44]–[45] (Ward LJ). See also Burge v Burge [2014] NSWSC 1772.
    • Rule is based upon practice of former ecclesiastical courts in probate matters, which were conducted inquisitorially rather than adversarially.
    • Appropriateness of this rule has been questioned in relation to adversarial disputes (eg over whether a document is an informal will): Fielder v Burgess [2014] SASC 98 [65].
    • The rule is not applied where the parties have conducted litigation on the basis that they would gain from the outcome: Estate of Moran; Teasel v Hooke [2014] NSWSC 1839.

Liability of the solicitor

  • Solicitors involved in the drafting of a will may be liable in negligence.
  • Prior to Ross v Caunters [1980] Ch 297, solicitors were not liable was the retainer was with the testator and the estate was regarded to have suffered no loss where the will was negligently drafted.
  • Solicitors now owe a duty of care to a disappointed beneficiary in circumstances where the estate itself suffered no loss: Ross v Caunters [1980] Ch 297; White v Jones [1995] 2 AC 207.
    • The solicitor is liable to compensate for the value of the lost gift.
    • The High Court of Australia has followed the English decisions and held a solicitor liable to compensate a witness-beneficiary for the value of the lost gift: Hill v Van Erp (1997) 188 CLR 159. This was followed in NSW: Summerville v Walsh [1998] NSWSC 52.
  • Where the solicitor’s action causes a loss to the estate (eg failure to advise the testator as to the bringing of an asset within the estate), no action lies with the beneficiary but only the estate: Ross v Caunters [1980] Ch 297.
    • A duty of care may arise if it is reasonably foreseeable that the solicitor’s actions will cause loss to the estate and a beneficiary: Carr-Glynn v Frearsons [1999] Ch 326.
      • No duty of care arises to the estate or beneficiary where the testator gave no instructions or sought no advice about what assets could be brought into the estate.
        • A solicitor is not liable for failing to advise as to the severance of a joint tenancy if no instructions were given to sever and the testator was aware that the property would pass to the surviving joint tenant: Vagg v McPhee [2013] NSWSCA 29.