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Will Disputes – A Cautionary Tale Against Trying to Write Your Own Will:

Etherton v Mitchelmore [2024] NSWSC 170

Caterina Felice Bohen (‘the Deceased’) died in August 2021. She was survived by two adult daughters and five grandchildren. In a will dated 10 August 2016, the Deceased purported to leave her grandchildren most of her estate. At the end of 2020, the Deceased handwrote a note on the back of a used envelope that read ‘I, Caterina Felice Bohen wish to leave my house to Robin Etherton of Roseville, as he was the only one who ever helped me when I needed help’. She then gave this to Robin Etherton without retaining a copy. The central issue in this case was whether this document could be accepted as one that contained the Deceased’s testamentary intentions.

Robin Etherton was the plaintiff in the proceedings who brought the case against the named executor of the 2016 will. Robin was also the ex-son-in-law of the Deceased, having been married to her eldest daughter from 2007 until 2010 or 2011.

The Succession Act clearly favours valid wills that have been prepared by a lawyer and are properly executed. However, the Act is not inflexible and the Court can allow informal documents to be admitted to probate if certain conditions are met. Section 8 of the Act allows the Court to dispense with formal requirements where there is a document that expresses the testamentary intentions of the deceased and the Court believes the document itself was intended to alter or be the testator’s will.

In this case, the plaintiff alleged the handwritten note on the envelope was a document that met these criteria and altered the 2016 will. The Court disagreed. They emphasised that as the Deceased had validly made the 2016 will, she was aware of the formal requirements involved in the process and would therefore understand the handwritten note would not have legal effect.

The judgment also noted the handwritten document did not use language that ordinarily signifies a disposition of property after death. Wills usually use language like ‘I give’ (or ‘I devise’ for real property) to signify intention. The Court classified the informal note as a proposal to change her will, but more was needed for it to be viewed as an actual amendment.

Another persuading factor to the Court that the note did not contain testamentary intentions related to the Deceased’s grandchildren. If the house was to be left to the plaintiff, who was also to receive $200,000 under the 2016 will, the Deceased’s estate would essentially be depleted, and the grandchildren would receive nothing. There was evidence that she was devoted to her grandchildren and would not want to disinherit them.

As a result of these findings, the plaintiff was unsuccessful and the handwritten note was not found to contain the Deceased’s testamentary intentions. This case demonstrates how there is more to writing a will than jotting down your thoughts on the back of an envelope. To avoid costly litigation after your death and make sure your intentions are properly understood, it is worth making an appointment with an experienced solicitor that specialises in will drafting.

The full judgment can be read here: https://www.caselaw.nsw.gov.au/decision/18de8e622db8607e60a4b26a

This cautionary tale demonstrates why it is important to have a will properly drafted by a specialist “will lawyer” so as to minimise “estate litigation” and “will disputes”.

Matthews Folbigg Lawyers has a dedicated team specializing in Wills and Estates with lawyers that can assist with will disputes. For more information or advice on Wills and Estate practice and procedure or for assistance with will disputes, please contact Mimi Su at (02) 9635 7966 or via email at mimis@matthewsfolbigg.com.au.