As foreshadowed in round 1, we will look at some examples where simple (and innocent) mistakes have led to expensive Court proceedings.
The matter of McKinney v LV Campbell was a recent NSW Supreme Court case where the argument was over the validity of a gift, where the deceased used a will kit they had purchased.
The signature of the deceased was witnessed by the husband of a beneficiary. The beneficiary was the daughter of the deceased and the mother wanted her to receive a quarter of her estate.
The instructions in the will kit warned against a beneficiary witnessing a will, but unfortunately made no comment about the beneficiary’s spouse.
The effect of Section 13.1 of the Wills Probate and Administration Act meant that the gift to the daughter was void because her husband was a witness.
There are some exceptions allowed, but they generally require a court to make a determination. That was necessary in this case where the court did validate the gift after investigating allegations that the deceased had been the victim of undue influence, however at significant cost to the Estate.
In the case of Katz v Grossman, the deceased was a widower when he died. He had two children, a brother and a sister. Most of his assets were in a self managed superfund and he was the sole member. When his wife died he made his daughter a co-trustee of the fund.
He signed a binding nomination that on his death the fund was to be paid to his two children equally. To be effective, the binding nomination had to be renewed every 3 years. In this case he had not renewed the nomination when he died and the 3 years had expired.
The daughter, as Trustee, elected to pay the death benefit to herself.
No doubt the deceased wanted both his children to share equally. However in this case the brother was unsuccessful in having his sister’s decision overturned by the Court.
Both examples highlight the expensive and unhappy consequences that can result from simple mistakes being made by people who think that making a will is something they could do themselves. Unfortunately, the law is not that straight forward and not obtaining proper advice can be both very traumatic and expensive to your family when they least need it.