Making a valid Will is one of the most important things a person can do to protect their loved ones. Over time a Will needs to be reviewed and updated so that it properly reflects life changing events. Making a homemade Will can subject an estate to significant delay and expense not to mention stress to the parties involved whilst they await the outcome of a court determination of the Will. A Queensland case provides an insight into one family’s predicament when husband and wife willmakers signed their 2006 joint Will having drawn it up themselves.
The husband willmaker died in 2012 survived by his second wife, Elizabeth. Both the willmakers had been previously married and had children from their previous relationships, but no children from their marriage together. An application was brought before the court to determine a number of issues surrounding the uncertain terms of the Will and the destiny of the family home which contrary to the terms of the Will had been held by the willmakers as joint tenants.
Broadly speaking, the intention behind the joint Will was that the survivor of the husband willmaker and Elizabeth was to be looked after during their lifetime but, on their death, the property of both husband and wife willmakers was to be equally divided so that it went half to the husband willmaker’s children and the other half to Elizabeth’s daughter. The court observed “The drafting of the Will in this case is so poor that I wondered whether or not I could sensibly give any effect to it”.
At the time the 2006 Will was made and at the death of the husband willmaker, the main asset owned by the willmakers was their home, which they held as joint tenants. Normally when property is held as joint tenants upon the death of the first titleholder, the property passes by survivorship to the surviving titleholder who is thereafter free to deal with the property as they see fit. And that’s exactly what Elizabeth did when she sold the home. Here the complicating factor was the existence of a joint Will which sought to limit each willmakers freedom to dispose of assets.
In this case the court found that there was a joint Will where both parties pursuant to an agreement in the form of their Will, made provisions that after the death of either one of them, the survivor was only to have a life interest in the property which they held as joint tenants. That agreement was inconsistent with the continued existence of the joint tenancy. The Court put it back on the family to reach an agreement as to the division of the remaining sale proceeds of the home rather than pursue further litigation which would see none of them gaining any of the benefit that their parents intended for them.
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