30/05/2012

In a recent decision of the New South Wales Supreme Court in Estate of Daly [2012] NSWSC 555, the Court had to consider the validity of mirror wills made by a husband and wife where the husband signed the will prepared for his wife and the wife signed the husband's will by mistake.

In this case, the mirror wills (as is common in practice) were prepared by their solicitor and despite being wrongly signed both were duly witnessed but no-one picked up the error.

The wife passed away (after the husband) and the sons sought Probate of the Estate based on the wills signed by their parents.

As there was no formal valid will signed by their mother, the sons sought to rely on s.8 of the Succession Act 2006.

That legislation allows the Court to admit to probate a document that purports to state the testamentary intentions of a deceased even though it may not have been executed properly.

The Court must find that the deceased intended the document to either be their will or to amend or revoke their will. 

The Court can have regard to anything it chooses in reaching a view on the intention of the deceased including specifically any evidence as to how the document was signed and any evidence as to the deceased’s intentions at the time.

An alternative argument was also relied on to seek rectification of the wife's will so that the will signed by the wife would be rectified to effectively cut and paste into it the testamentary wishes set out in the will her husband mistakenly signed.

The Court referred to a decision of the Supreme Court of South Australia which stated:

"In my view, to delete the portions of the will of the deceased's wife which the deceased actually signed so that the document complies with the known intentions of the deceased, is of greater artificiality than to admit to probate the actual will of the deceased, despite its lack of appropriate execution".

The NSW Court agreed and held:

"the appropriate course is to admit to probate the document the deceased intended to be her will, notwithstanding its lack of due execution, pursuant to s 8 of the Succession Act, and not to make an order under s 27 [concerning rectification]."

Although in this case, the invalidly signed will was admitted to probate, great care should always be taken in signing wills and all documents relating to testamentary intentions.  No-one wants the delay and cost of court proceedings.

If you have any questions in relation to this article, please contact TOWNSENDS BUSINESS & CORPORATE LAWYERS on (02) 8296 6222.