You can’t just agree to ignore a will

Dad died on 3 August 2018 and was survived by Mum and 4 children.  Dad had executed wills in September 2014, January 2015 and April 2016. In each of the wills (except the 2016 will), the four children were named as executors.

The estate consisted primarily of the family home, which he owned as tenant in common with Mum in equal shares. Under the 2015 will, he gave a right of residence in the property to Mum for the remainder of her life. Following her death, or vacation of the property, his share of the property was to be divided equally between the children. The rest of the Estate was divided equally between the children.

The 2016 Will departed significantly from earlier wills.

The 2016 will did not make any provision for Mum. The whole estate was to be divided into two equal halves. One part was given to one daughter, the other half equally among the other children. In late 2016, the Mum moved into an aged care facility, so the right of residence in the previous wills was extinguished in any event.

In 2018, daughter sought probate on the 2016 Will as sole executor.  The other children sought probate on the 2015 will. 

The other children asserted that Dad did not have capacity at the time he wrote the 2016 will. An application had been made to NCAT a month prior to the will was executed, seeking appointment of a financial manager (which was subsequently granted).

The parties reached an agreement during the course of the probate proceedings. They agreed that a grant of probate should be made on the 2015 will and to disregard the 2016 will.

The issue was whether the parties have the authority to agree on an earlier will.

Hallen J held that despite a compromise being reached, the Court will not pass over a later will or testamentary document which appears to be valid. There needs to be evidence sufficient to establish that the later will is not valid before the Court will disregard a testamentary document. If evidence has not been filed, the Court may require a hearing to determine the issue.

His Honour followed prior decisions, such as that of Estate Kouvakas; Lucas v Konakas[i] where Lindsay J found that the reason the parties cannot agree on which will to propound, is that ‘..the document in question is that of the testator, and not of the parties..’. It is not up to the parties to determine, but a matter for the Court, as the grant of probate is a public act and the consent of the parties is not sufficient to prove a will. There has to be evidence justifying such an order being made.

In this matter there was sufficient evidence that there was serious doubt as to the testamentary capacity of the deceased at the time of the 2016 will. Probate in solemn form was granted on the 2015 will.

Cassarino v Cassarino [2020] NSWSC 454

[i] [2014] NSWSC 786

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