The importance of changes in one’s circumstances and the need to update estate planning documents is no clearer than when you read a case such as this one.
In a recent case of Selig v Selig [2024] QSC 189, the Court determined an application by the children of a deceased parent who had left a formal Will, but also documents entitled “My Wishes” and a “Nomination of Beneficiaries Form” that formed the basis of the children’s claim as an informal Will.
The deceased was survived by two adult children, and his second wife (defendant to the proceedings), with whom he’d been separated since 2008 and had an informal property settlement in 2015. The deceased was also survived by his first, former wife; the mother of his two children. The deceased also had children with his second wife.
The deceased had left a formal Will made in 2003 appointing his second wife who had sought to propound that Will in her application for Probate. The Probate application was subsequently dismissed, following the lodgement of a caveat by the deceased’s children.
The deceased’s children applied to the Court to seek to uphold two documents as the deceased’s true testamentary intentions; a booklet entitled “my Wishes” and a completed “Nomination of Beneficiaries Form” for the deceased’s life insurance policy. Both documents were produced by the insurance company and completed and signed by the deceased on 23 April 2021 (i.e. after his formal 2003 Will). The deceased had signed these documents in the presence of his first wife and had completed them with her help. In the Nomination of Beneficiaries Form, the children were to each receive 50% of the $150,000 benefit payable under the life insurance policy. The deceased’s second wife had alleged that the signatures of the deceased on the documents were a forgery.
The estate composition was small, comprising only the life insurance policy proceeds and nominal personal effects.
Unfortunately for the children, the Nomination of Beneficiaries Form was not accepted by the insurance company, as the original form had not been submitted to the company prior to the deceased’s passing. Whilst they had attempted to resolve the matter directly with the insurance company, ultimately, they were required to make the application to the Court to uphold these documents as an informal Will under section 18 of the Succession Act 1981 (Qld) (‘the Act’).
The Court was required to consider two things; did the deceased make an informal Will, and if so, can the Court proceed with only a copy of the informal Will, as the insurance company retained the original Nomination of Beneficiaries Form (and subsequently and inadvertedly disposed of the original).
Working through the requirements of section 18 of the Act and referencing notable decisions including Hatsatouris v Hatsatouris [2001] NSWCA 408 and Re Nichol; Nichol v Nichol [2017] QSC 220 as they relate to the documentary needs and execution of Wills respectively, the Court noted that not all original documents were available to the Court. The document entitled “My Wishes” was in original format, however the Nomination of Beneficiaries Form was only a copy. During it’s consideration, the Court addressed the destruction of the original Nomination of Beneficiaries Form, noting that the evidence of the children explained the failure of the insurance company to retain the original document and inability to produce the original to the Court. The Court therefore overcame the presumption of destruction accordingly.
The Court drew on much evidence provided by the deceased’s first and former wife, who the deceased had maintained a friendship with, following their divorce. The deceased’s first wife was critical to the Court’s consideration as it was she who had supported the deceased in the completing and signing the documents now purported to be the deceased’s informal Will. The Court accepted the deceased’s first wife evidence, much of which was corroborated by his children in their own evidence. The Court further noted that the deceased had communicated to his children that he had made his Will and that it was kept in the top drawer of his bedside table; where the informal Will documents were later found after his death.
In weighing the various elements, the Court determined that there was indeed a “document” for the purposes of section 18, concluding that the My Wishes booklet and the Nomination of Beneficiaries Form jointly comprised this, and accepted that the two documents together formed the testamentary intentions of the deceased. The Court noted that the “My Wishes” booklet contained the deceased’s intentions in relation to his funeral dress, music, arrangements, instructions regarding his ashes and who was to be advised of his passing, in addition to the nomination of children as the beneficiaries of his life insurance policy.
The Court concluded that the requirements for an informal Will were met and the Court made an order to uphold both documents to comprise the deceased’s informal Will under section 18. The Court appointed the plaintiffs as the administrators of the estate, and ordered the defendant (second wife) to pay the plaintiff’s costs of the application.
You can read the full case here.