Estate planning and unsigned documents

Wills & Testamentary intention

What happens if a loved one instructs a solicitor to prepare a Will, but the Will remains a draft and they never get around to signing it? 

What happens if you die before your Will is signed ? 
 
It is very important that a person’s will & testamentary intentions are regularly updated and reviewed and executed.   
 
Sometimes the intended beneficiaries miss out.
 
There are a number of triggers which should cause an individual to review their estate planning.  The following case highlights what happens when a persons last will was not signed before they died.
 

The case

 
Bradley Scott Lyons passed away in March 2020 – his last official Will was dated 27 May 2016.
 
The Plaintiff (his wife) was seeking Probate of an unsigned, and unwitnessed, draft Will.  The will was dated February 2020. The draft Will contained a clause that revoked all previous Wills and other testamentary acts. It also contained clauses that made the Plaintiff the executor and trustee of the estate.  It gave her all of the deceased’s personal and household effects. The Will included a Clause that required the executor to pay all unsecured debts and a Clause that required her to “distribute the residue of my estate to The Bradley Scott Lyons Family Testamentary Trust” .   
 
The last official Will appointed his wife as the executor and trustee of his estate if she survived him by more than 30 days.  This will stated that all personal and household effects went to her, and the residue of his estate following all payment of debt and expenses was also to be left to her.
 
A draft Will was drawn up by Gerard Basha, a very experienced legal professional, at the request of the deceased and the Plaintiff.
 
The deceased had been diagnosed with a terminal illness and they were getting their affairs organised.
 
A follow-up meeting was never held between Mr Basha, and the deceased.  The deceased’s health got considerably worse and he was admitted into hospital before passing away in March 2020.
 

The Decision

The judge found that the Draft Will could not be admitted into Probate.  The judge found there was insufficient evidence to satisfy that the deceased intended the draft to form his Last Will . The testamentary intentions of the deceased were key in determining this case.  The deceased was aware of the requirement to “get the Wills signed” but a meeting was not held for this to occur.
 

To read more information about this case, including the Judge’s reasoning, head to https://www.austlii.edu.au/…/cases/nsw/NSWSC/2021/197.html