A draft will is not a will

Many a time we have clients that prepare their wills, and then we do not hear for them for sometime later. We attempt to follow up our clients and remind them that just because they have had the initial appointment with us, and documents have been prepared, their estate planning remains unfinalized.

Earlier this year, the Court had to determine whether or not a draft will prepared was sufficient to be the deceased’s last valid will.

The Facts

The deceased had taken sometime to arrange an appointment with his solicitor, on the recommendation of their financial planner. Several appointments were made, but were not attended by the deceased or his wife.

Finally after almost a year, an appointment between solicitor and deceased occurred. This appointment occurred after the deceased had received some bad news regarding his health and diagnosis with Stage 4 Liver Cancer.

The main change in the will, was to include testamentary discretionary trusts of which the surviving spouse and the minor children would be the primary beneficiaries. The prior will, was a basic will, in which the estate was left solely to the surviving spouse.

As the value of the estate was over $3 million, there were certain tax advantages that the plaintiff wife could take advantage of, if the draft will was the last will of the deceased.

The solicitor duly prepared the will, and like us, included the ‘Draft’ watermark on the documents. The draft will was emailed to the client and the solicitor requested an appointment occur soon.

However, shortly after receipt of the email, the deceased was admitted to hospital. There was evidence that he read the draft will and expressed satisfaction with it. He did indicate the need to have the will signed. His wife decided that they had more time and that he could worry about signing the will after he left hospital. No attempts were made to arrange an appointment with the solicitor.

(As a side note, most solicitors practicing in this space will arrange a hospital visit for their existing clients).

The wife’s assessment of her husband’s condition proved to be too optimistic. He left hospital to go to a palliative care hospital, and died a few weeks later without having signed his will.

Relevant factors for finding not a will

The Court reluctantly held that the draft will could not constitute a final will due to:

  • The draft will was prepared by the solicitor in anticipation of another document being prepared for execution;
  • The ‘draft’ imprint on every page
  • Acknowledgment by the deceased that he knew that will needed to be signed (and the draft was not signed);
  • No one had tried to contact the solicitor to arrange the final document;
  • The deceased was familiar with the formal requirements of a will, having prepared wills with a solicitor previously
  • No evidence that the deceased intended the draft will in its current form to act as his final will without more being done
  • There was no evidence that the deceased believed he had finalised his will even though it was not signed
  • No evidence of any attempt to sign the draft will
  • No evidence the deceased described the draft will as his will to his wife or any other party

The Court dismissed the application for probate on the draft will and granted probate in solemn form on the earlier will.

Key takeaway

This case serves as a reminder to clients that you need to finalise your wills promptly with your solicitor. We understand that you may not like to think about your death, however, it is far more important to ensure that your affairs are in order and complete, rather than leaving things until it is too late.

We can assist you with all your estate planning requirements, and aim to finalise documents within a short period of time, to assist you in the finalising these documents promptly. Contact LS Legal today for your estate planning needs.

The Estate of Bradley Scott Lyons [2021] NSWSC 197