27/11/2015

The recent case of Estate of George Aeneas McDonald; Howard v The Sydney Children’s Hospital Network (Randwick & Westmead) & Ors [2015] NSWSC 1610 reinforces why there is no such thing as a ‘simple will’ and the dangers of taking a do-it-yourself (DIY) approach.

George was an elderly man who throughout his lifetime enjoyed a close relationship with his neighbours, the Howards.  George would spend time at the Howards’ residence and in particular, Lisa (Mrs Howard) would take George shopping, to the doctor, and assist him with household chores.  

George’s solicitor had previously prepared two wills in the past and an amendment to his most recent will.  The most recent will left George’s estate to a named hospital and charity and named George’s solicitor as the executor.

One day George made a comment to David (Mr Howard) that he would like to leave his estate including his house to Lisa.  It was further discussed that George wanted to leave certain sums of money to a hospital and church.  David then agreed that he would “take care of it” and took it upon himself to prepare George’s will.

In relation to preparing George’s will, David explained, “I didn’t consider contacting George’s solicitor or any other solicitor because I was of the belief that the preparation of a Will was not a difficult task.  I did not specifically ask George if he wanted me to be the executor because I had always assumed that I was executor of his existing Will”.

After reading a textbook chapter on Wills and researching wills on the internet, David, who worked as a dentist, drafted a Will for George which was subsequently executed.

The Will contained a sentence that stated, “I would request that Lisa donate $5,000 to the John Taylor Memorial Presbyterian Church Greenwich and $20,000 to the Children’s Hospital Westmead”.

Due to the way the above sentence was drafted, the request for Lisa to donate the relevant sums of money to the specified entities was non-binding which meant Lisa did not have to adhere to George’s wishes.  The court held that this did not give effect to George’s intentions and accordingly the court redrafted the Will to make the gifts binding.

This case serves as an important reminder of why a qualified lawyer should be involved in the drafting of a Will and the estate planning process - not a dentist, a tailor or a candlestick maker … and certainly not someone who has simply googled “Wills”.  

David’s view that drafting a Will is not a “difficult task” is very wrong; there are many niceties that can trip you up, as David and George’s estate found out.  This case highlights that the costs and time of going through the courts can be avoided, and a client’s intentions recorded correctly, if the drafting of a Will is left to the experts.

If you would like assistance with the drafting of Wills and any other estate planning matters, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.