29/11/2016

There's a way to make sure your testamentary wishes are carried out properly - by avoiding DIY wills!

In Lubke v Claridge [2016] TASSC 44, Mr Lubke purchased a DIY will kit for himself and his wife and completed the document.  In the section where the name of the executor was required to be written, Mr Lubke appointed “Brian Claridge Accounting” as executor of his estate.

It turned out that Mr Lubke’s accountant company was actually called “Brian Claridge Accounting Pty Ltd”, one of the directors being Brian Claridge.  There was no business name that existed called “Brian Claridge Accounting”.

It was unclear whether the executor was intended to be “Brian Claridge” in his personal capacity or the company “Brian Claridge Accounting Pty Ltd”.

As there was uncertainty as to who the executor was, probate was not applied for and an application was made to the court to determine that Brian Claridge was the executor of the estate.

Where there is uncertainty in a clause in a will, the courts have the power to construct the clause in the will after consideration of relevant evidence of the deceased’s intentions.

During consideration of the evidence, the deceased’s wife said that Mr Lubke drafted the executor as “Brian Claridge Accounting” in the event that Brian Claridge was not alive at the time of his death and his successor would assume the role of executor.  Further evidence also showed that Mr Lubke had a conversation with Brian Claridge about appointing him as executor of his estate.

As a result of the evidence, the court construed the Will to appoint Brian Claridge in his personal capacity as the executor.

You might say that it all turned out alright in the end, so what’s the big deal?  Time, money, stress, inconvenience.  The administration of the estate was delayed.  The court application cost a bomb, which reduced the amount of the estate.  The stress caused to Mrs Lubke was considerable as was the inconvenience she would have experienced in attending to the court proceedings.

Some may take the view that drafting a will is a simple task where you can easily do a DIY job and save money doing so.  However, the drafting of an important document that directs who has the responsibility and control of your estate and to whom and where your assets are to be distributed should never be a DIY matter.  The dangers and risk of getting in wrong may end up in costly court applications or disputes.

If Mr Lubke had his will drawn up properly by a solicitor, the application to the court would have been unnecessary as the solicitor would have been able to draft the document to give effect to Mr Lubke’s wishes and named the executor correctly to avoid any uncertainty.

If you need to replace a DIY will or other DIY documents such as enduring power of attorneys, or need to update to your current testamentary documents please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.