Commercial lawyers. Commercial results.

Beware of home made wills

A large number of people in the community have the perception that the Judiciary is out of touch and has no idea about “the real world.”

In my opinion, in the matter of making wills it is actually the reverse – the Judiciary has a better idea of what should be done than most people.

Sometimes members of the Judiciary come up with a classic quote.  In the recent Western Australian Supreme Court case of Gray v Gray [2013] WASC 387, Master Sanderson (the Judge) said “Home made wills are a curse.”  He then went on to say: “There is no question but that engaging the services of a properly qualified and experienced lawyer to draft a will is money well spent.”  Needless to say, the case involved a dispute over a home made will.

I can say from my own experience as a solicitor that when people have brought home made wills to me, more often than not I have been able to point out to them things which are wrong with the will – things which would cause doubt as to whether that will would “stand up” in Court.  This includes wills which were done by highly intelligent people making me think “If he/she can’t get it right, what chance does the ordinary man on the street have?”

Let me point out a few other quotations from Gray v Gray:

  1. Master Sanderson said: “The spirit of the will is to prevail.  The letter is not allowed to kill it.”  In other words, the Judiciary recognises a duty if at all possible to ascertain the spirit of the will of the deceased person and carry out the spirit of the will and not allow some technicality to overturn it.  In my opinion, that is what people want.
  2. Master Sanderson referred to the High Court of Australia case of Ritchie v Magree [1964] HCA 10 and quoted the following words of the Chief Justice (Dixon CJ) who was one of the judges in that case: “I think that to ascertain with any certainty the precise intention of the testator from the language he has used is not really possible.”  In other words, in Ritchie v Magree the Chief Justice looked at the will and tried to find out the intention of the testator (the person making the will) but could not tell what the precise intention was.  Where that happens, we are left in the all too common situation referred to in the next quotation.
  3. Master Sanderson also said: “There is a wide divergence between what the plaintiff says is the proper interpretation of the will and the interpretation proposed by the remaining beneficiaries.”  In other words, there was an argument about how the will (home made) should be interpreted.

I am not saying that it never happens that wills made by a lawyer end up in a fight over interpretation, because sometimes they do.  What I am saying is that this happens much less often than it does when people have made a home made will.  Remember, if you don’t get it right in your will, once you are dead you cannot come back and redo the will.  If there is a fight over the will, this time the lawyers will be paid a lot more money than they would have been paid if they had done the will in the first place.

Author: Tom Pottenger

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