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Homemade Wills Can Be a Curse - A Warning to Blended Families

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Making a Will is one of the best ways of ensuring that your assets are distributed in accordance with your wishes when you die.  In this age of technology with the availability of information at our fingertips, some people consider that they can do it all – and home-made Wills are no exception.  

On the face of it, Will kits appear to be cheap and simple.  However, you only need to read some of the horror stories which illustrate how disastrous the consequences of a home-made Will can be, to understand the risks involved in preparing your own Will with limited knowledge of the law.

KENNETH EPPS as Executor of the Estate of JOHN HOMER (Dec) -v- HOMER & ORS [2006] WASC 290

“The making of home‑made Wills can lead to problems.  That statement is not a paid advertisement for the legal profession.  It is a statement of fact.  This case illustrates the point.”

  • Master Sanderson, Supreme Court of Western Australia

Background

Mr and Mrs Homer married in 1986.  Both had been married previously and each had children from those marriages.

Mr and Mrs Homer made mirror Wills using Will-kits purchased from a local newsagency.

What we understand that Mr Homer intended to achieve by his Will was:

  1. to give $15,000.00 to his children, to be divided equally between them;
  2. to give the residue of his estate to his second wife, Mrs Homer; and
  3. upon the death of the survivor of Mr and Mrs Homer (that is, the last of them to die), to divide the residue of the estate 50% to Mr Homer’s children (in equal shares) and 50% to Mrs Homer’s children (in equal shares).

A perfectly rational arrangement in a blended family situation, if only it had been drafted in that way.  Instead, this is how the Will read:

“ALL THE REST OF MY ESTATE I LEAVE TO MY WIFE SHIRLEY ANN HOMER

BUT IN THE EVENT THAT MY WIFE SHIRLEY ANN HOMER AND MYSELF SHOULD PASS AWAY AT THE SAME TIME… I LEAVE ALL THAT PART OF MY ESTATE BEQUEATHED TO MY WIFE TO OUR CHILDREN, FIFTY PERCENT (50%) TO BE SHARED EQUALLY BETWEEN MY NATURAL CHILDREN, AS PREVIOUSLY NAMED, THE REMAINING FIFTY PERCENT (50%) TO MY STEP CHILDREN, TO BE SHARED EQUALLY…”

Mr Homer died on 23 November 2004.

The residue clause in Mr Homer’s Will did not deal with the residue of his estate if Mrs Homer passed away before he did.  It only contemplated what would happen to his estate if he and Mrs Homer died at the same time.

In fact, Mrs Homer had died in 1998, 6 years prior to Mr Homer’s death.

So, what happened next?

It was argued that the residue clause was ambiguous, but Master Sanderson found that the clear answer was that it was not. The plain meaning of the clause was that it operated if Mr Homer and Mrs Homer died ‘at the same time’. Given that Mrs Homer had died 6 years earlier than her husband, Mr and Mrs Homer had not died ‘at the same time’.

Now here’s the real tragedy, a tragedy which was not at all intended.  This clause created the situation where Mr Homer’s residuary estate was declared intestate. Intestacy meant that only Mr Homer’s natural children would be entitled to the residue of his estate and Mrs Homer’s children would be left with nothing.

Master Sanderson accepted that, although the effect of the residuary clause was bizarre and operated in such limited circumstances, its interpretation was not ambiguous.

 The DIY warning

In the words of Master Sanderson in Gray v Gray [2013] WASC 387:

Home-made Wills are a curse.  Occasionally, where the assets of a testator are limited and where the beneficiaries are not in dispute, no difficulties may arise in the administration of an estate.  Flaws in the Will can be glossed over and the interests of all parties can be reconciled.  But where, as here, the estate of the deceased is substantial, the Will is opaque and there is no agreement among the beneficiaries, the inevitable result is an expensive legal battle which is unlikely to satisfy everyone. 

All of this could have been avoided if the testator had consulted a lawyer and signed off on a Will which reflected his wishes.  There is no question but that engaging the services of a properly qualified and experienced lawyer to draft a Will is money well spent.”

Beware of the Will kit!  Your Will is one of the most important documents that you will create in your lifetime, so get it right.

Make enquiries and consult an experienced, qualified and well-recommended lawyer who can advise you in having your intentions effectively reflected in a professionally drafted Will. Spend a few dollars now to potentially save your estate thousands in the long run.

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Wednesday, 01 April 2020