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The perils of the “homemade will”

05 Dec 2016

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  • Wills & Estates

Tanya Herbertson, Director and head of the Wills and Estates team, discusses some of the issues with people makeing “homemade wills”, and the importance of getting your will prepared by a qualified and experience lawyer to ensure that your  testamentary wishes are fulfilled.

On 30 November 2016, Master Sanderson of the WA Supreme Court delivered judgment in yet another “homemade will” case (Brant v Murray).

The case reinforces the fact that it is simply a false economy to do without professional legal advice in preparing a will. Too many “homemade wills” are ill-prepared and end up either being unenforceable or causing great expense to the estate in legal costs to try and rectify the problems arising from the poorly prepared homemade will. Master Sanderson said in his judgment:

“Over the years I have made countless statements in judgments bemoaning the fact testators seem to think they can adequately deal with their estate by way of a homemade will. Really there is nothing left to say on the topic. This case reinforces again the difficulties which so frequently arise. What should have been a simple grant of probate to give effect to a straightforward disposition of a small estate requires the intervention of the court.

The difficulty in this case was the legal effect of an apparently conditional gift of $50,000 to two people. The relevant clause of the homemade will read as follows: “I give the rest Estate including house and contents money and car I have to my nephew Dean Peter Brant. Should he deside [sic] to sell my house I request that he give $50-000 to Helen Murray and $50-000 to Justin Stewart Arnold.”

Master Sanderson ultimately decided that the gifts of $50,000.00 were void for uncertainty. Accordingly, neither Helen or Justin shall receive any gift under the will. Master Sanderson found the words used in the will were uncertain because the nephew, Dean, could have divested himself of the house without a sale transaction (e.g. transfer it to a company which he wholly owned) or the sale of the house could be forced upon him (e.g. if he mortgaged it and defaulted on his repayments and the mortgagee exercised its power of sale or if say a Family Court ordered the sale of the house for a division of assets after a relationship breakdown). Further, the use of the word “request” suggests the testator was asking the nephew to consider making the bequests.

The clause was not put in imperative or demanding terms and so it was not possible to know if the nephew did not make the payments whether or not he would be breaching the terms of the clause or simply disappointing the testator. The message of course is loud and clear – do get professional advice and have your will prepared by a solicitor who specialises in wills and estate planning.

If you need assistance with your will and estate planning needs, please contact us at Snedden Hall & Gallop Lawyers by phone on (02) 6285 8000 or by email.