Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 24 June 2017.
Raymond made a will many years ago and his solicitor gave him a copy.
Shortly before his death, Raymond reviews his will. He decides that because he has less money in the bank than what he did when he made the will, that the gifts to his grandchildren are no longer appropriate. He has six grandchildren and instead of each receiving $10,000, he wishes to give them a nominal amount of $1,000.
Raymond amends the amounts by hand, and initials the amendments. He signs the attestation clause and re-dates the will. He informs his executor.
When Raymond passes away, his executor seeks legal advice.
Raymond’s executor is advised that alterations to a will must be made in compliance with the relevant legislation, which means that the amended will needed to be executed before two independent witnesses.
The executor is informed that because the alterations are presumed to have been made after the will was executed, it will be difficult to obtain a grant of probate.
The executor is advised that the will should have been completely re-drafted or a separate “codicil” prepared, properly executed and witnessed.
The executor is also advised that there is an obligation that the amended will be disclosed to the court as part of the application for probate.
Raymond’s will is ultimately subject to an order that the court dispense with the requirements of due execution and the gifts to the grandchildren are reduced accordingly.
The process involves the filing of affidavits regarding the circumstances surrounding the alteration of the will. The affidavits address whether the alterations were merely “deliberative” or whether Raymond intended them to form his last will.
The process is costly and results in significant delays.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
