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Life after Death?

But it was established to the satisfaction of the Court that the 2009 Will had been signed at a time when the testator had already lost testamentary capacity due to certain delusional beliefs which she held. Accordingly, the Court decided the 2009 Will had no effect. That meant that the revocation of the 2006 Will was also ineffective. So the 2006 Will was rescued from its dusty grave, and was duly admitted to Probate. The case also demonstrates that in deciding which Will is valid, the Court makes up its own mind based on the evidence before it and does not simply follow any agreement reached by the parties.

In Williams v Schwarzback the question of which Will was valid was initially hotly contested; at a mediation the parties agreed that the 2006 was the valid Will. But the Court only decided in favour of the 2006 Will when it was satisfied that the 2009 Will was invalid. It did not simply rubber stamp the agreement of the parties, who had to put the necessary evidence of the testator’s delusions before the Court. This is an illustration of the rule that in contested Probate disputes one cannot simply get judgment by consent, even if the parties ultimately settle their differences.

Finally, it is good practice for testators, when they sign a Will, to write ‘revoked by Will dated….’ across the earlier Will; this practice helps to minimise confusion as to the status of the earlier Will. If the later Will is found to be invalid, the revocation is also invalid and the earlier Will is available to be admitted to Probate. The earlier Will may also be relevant if Family Provision proceedings are brought, even if the later Will is valid. So, as you can appreciate, at least in Probate matters, there can be life after death.

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