[WSBAPT] No Will - Maybe?

Mon Jun 24 11:41:51 PDT 2019

This is all very interesting, but the case is from Australia (WA = Western Australia in this context).  Is there any reason to think this would be persuasive in our WA courts?

Sara D. Longley, J.D., LL.M.

LONGLEY LAW PLLC 

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Diane J. Kiepe
Sent: Monday, June 24, 2019 11:29 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] No Will - Maybe?

In today’s day and age, I would still ask the would be beneficiaries if they would like to try a TEDRA petition and serve it on the estranged children and see if anyone appeared.  

The recent WA decision of Re The Estate of Allan John Young [2015] WASC 409, which was handed down on 3 November 2015, deals with the interesting question of what happens if a person unexpectedly dies before signing his or her Will. Is the unsigned document valid? Can the unsigned document be admitted to Probate, thereby allowing the Executor to administer the Estate as per the Will?

Briefly, the facts of the case were that Allan Young (‘the deceased’) lived in Hopetoun, WA and had his Will prepared by lawyers in Perth. Just a few days before his unexpected death, he spoke with his accountant and said words to the effect: “I have read the documents and I am happy with it as long as you are happy.” The accountant replied that he had no problems with the Will. On 21 May 2014 – the day before he died – he spoke with one of his neighbours whom he would see daily. He told her that he had decided to sign his new will, saying: “I suppose I’m going to sign this will … I will get it finished.” The next day, he died.

Given that the deceased had not signed the Will, it did not satisfy one of the fundamental statutory requirements in the Wills Act 1970 (WA) – namely, the need for the deceased to sign the Will and have his signature witnessed by 2 people. Thus, the only way in which this unsigned Will could be admitted to Probate was if it satisfied the requirements of being an ‘Informal Will’ under s 32(2) of the Wills Act 1970 (WA). In order to be admitted as an Informal Will in WA, the Court must be satisfied that the deceased intended the document to constitute his last Will.

In the end, the Supreme Court was satisfied that the document in question was an Informal Will and ordered that the Informal Will be admitted to Probate.

This interesting case highlights a number of points, including:

*       A Will should be signed as soon as possible after it has been prepared and settled;

*       The importance of having a validly signed and current Will – this will minimise the costs arising from court proceedings to try and prove a document as an Informal Will;

*       Whilst Informal Wills can be admitted to Probate in some circumstances, there needs to be clear and cogent evidence that the draft Will or other documents reflect the deceased’s testamentary intentions; otherwise it is unlikely that such a document will be admitted to Probate. Therefore, in some instances, the failure to have a validly signed Will (even if it has been drafted) will result in an intestacy and the Estate being divided up according to the intestacy rules in the Administration Act 1903 (WA).

From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  <wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Dalynne Singleton
Sent: Monday, June 24, 2019 9:55 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: [WSBAPT] No Will

There is no will so you need to file the intestate estate.  I know of no caselaw or otherwise that the intent of the testator when he verbally told someone of his intent to change his estate documents but never finalized or signed them held up in court…  if he had a prior signed will, argument could be made he revoked it and is now intestate as well.  But he clearly did not sign new docs.

Dalynne Singleton

Gourley Law Group

Snohomish Escrow

The Exchange Connection

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Snohomish, WA 98291

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From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  <wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Amy Goertz
Sent: Sunday, June 23, 2019 8:43 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: [WSBAPT] Will or No Will

Has anyone started a probate on the premise that there is a “Will” when there isn’t?

Decedent met with an estate planning attorney nearly a year ago and gave instructions for drafting estate planning documents leaving the bulk of his estate to some of his children and leaving his estranged children $1.00 each. I am unclear as to why it took so long to get things put together, i.e. whether it was the attorney or the client who was dragging his feet. In any case, a few months ago, Decedent had a medical issue and contacted the attorney to tell him to finish up the documents and schedule the appointment to sign them ASAP as he was ill. Appointment was scheduled. Decedent died prior to signing.

The estate planning attorney has indicated he would testify as to the decedent’s intent, but is it all for naught since he didn’t get anything actually signed? Is there any way to cobble together documents to prove the testator’s intent to disinherit some of his children?

If so, how would you start the probate? Would you start it as intestate but then do Petition and Order as to the Heirs and just name the favored children?

I appreciate your thoughts on this …

Amy J. Goertz, J.D.

Goertz & Lambrecht PLLC

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