Recently I acted for executors in an estate matter, which should have been relatively straight forward, but in this matter was complicated due to some problems with the Will.

There was a Will, executors, superannuation, real estate and a small business.

This article will only address the Will.

The Facts

The deceased was a male, single, no children who resided in NSW.

The Will named executors and beneficiaries all of which lived overseas.

The Problem

The Will was dated, signed by the deceased but not witnessed.  The Will generally falls into the category of an “informal will”.

The Procedure

The Court may still make a grant in relation to an “informal will” but the Court needs to be satisfied that the “informal will” was intended by the deceased to be their Will.

The application to be made to the Court was an Application for Letters of Administration with Will annexed “the Application”.  Adding another issue to the Application was that all the executors and beneficiaries lived overseas.  Therefore, an attorney had to make the Application on behalf of the overseas executors.  This type of matter is considered by the Court to be a complex application.  In addition to the usual documents required to be drafted and filed with the Court for a grant of letters of administration, the following documents also had to be drafted and filed with the Court:

  1. The Notice of Intention to Apply for Letters of Administration which is advertised on the Court website, had to contain additional information pertaining to a declaration being sought that an attorney (not the executors) was making the Application;
  2. The executors had to appoint the attorney (in this case a solicitor) as their Power of Attorney in order for the solicitor to make the Application on the executors behalf;
  3. Searches needed to be undertaken for any unknown wife, defacto or children, advertisements had to be placed and letters sent to locate any other will;
  4. A separate affidavit needed to be obtained from friends of the deceased confirming that the deceased did not have a wife, defacto or children;
  5. An executor needed to obtain a certificate of independent advice confirming her agreement that the Will be recognised as the intended Will of the deceased rather than assert a position of intestacy which would give her the entire estate under the rules of intestacy;
  6. Consents needed to be obtained from all executors and beneficiaries to dispense with the need for a bond and surety to be lodged with the Application;
  7. The attorney needed to provide a detailed affidavit regarding the searches made, and advertisements placed, noting that a copy of the Will had been sent to all beneficiaries and the power of attorney documents had not been revoked.

The effect of the “informal will” on the estate was that:

  1. Extra costs were incurred over and above the Courts scale probate fees;
  2. The “informal will” required the Court to review many more documents which took more of the Courts time which in turn delayed the grant issuing from the Court:
  3. The executors and beneficiaries were required to sign more documents and undertake more searches of the deceased’s effects and affairs at a time of great grief at the loss of a loved one.

The solution

To avoid the extra work, extra costs, extra time involved and added stress on the executors and beneficiaries, ensure that your will is properly executed by both the will writer and the witnesses and that the will is dated.

For further information please contact Fiona Touhill .

November 2022

This article is for general information purposes only and is not intended and should note be treated as legal advice.