Estate of Slavinskyji: Neighbour was of polish origin but could speak ukranian but could not write it (or English). In the presence of the neighbours S wrote on the wall with pencil, as he wrote it he said he was writing his will and will leave his assets to his nieces. The neighbour husband also signed on the wall but the wife did not because she could not write or read English or ukranian. Ultimately the

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will was admitted to probate under the dispensing power. Allows court to admit a will to probate even though the formal requirements for making a will has not been met as long as they believe it reflects the will of the testator. The noncompliance here was not enough signatures. The writing aspect had been satisfied i.e. doesn’t have to be in paper or using pen (can use things like blood to write). Video recordings don’t satisfy the requirement of writing.

Signed at the Direction of the Testator

Dodd v Lang On the day L died, his solicitor came to the hospital on his instructions to write his will.

The S made a note of the notes given by his client. Then in the presence of the hospital staff (2), the S read over the will and asked L if that is what he wanted and he said yes. L tried to sign but was unable to hold the pen. He was able to make a smudge with his bandages, so the S wrote at the end of his will , the testator attempted to sign his will. Then S and a nurse signed as witnesses. Was the will validly executed? No it was not, because no signing by the testator nor by someone at the testator’s direction. Need to show the smudge was intended to be a signature. The actual signing has to be at the direction of the testator (specific), dictation is not enough to be direction.

What does witness attestation mean?

Re Lucas To attest a will means to put one signature or other identifying mark with the intention of attesting that the testator’s signature has been made or acknowledged in one’s presence. T made a copy of her will and made changes on the copy. Her neighbours witnessed her alterations, but they signed next to the copied signature instead of the new signature. The court was not satisfied that the witnesses intended to attest the new signature.

Does the witness need to know that it’s a will?

Succession Act (NSW) s7: doesn’t need to know Wills Act (ACT) s13: doesn’t need to know

Who can be a witness

Succession Act (NSW) s9:blind people cannot be witness

SA (NSW) s10(2): the beneficial disposition is void to the extent that it is relevant to the witness attesting.

(3) it is not void if

(a) at least 2 people attesting are not beneficiaries or

(b) all persons who would benefit if the gifts were not distributed consent in writing if they have the capacity or

(c) court is satisfied T knew and approved of the disposition and it was given freely and voluntarily.

Wills Act (ACT) s15: A will not be invalid just because a B attested the will

Presumption of Due Execution

Re Bladen: where the will appears to have been validly executed on its face, then the will is validly executed. Here the witnesses did recall the circumstances of the execution of the will, but they gave

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different accounts. If there is no evidence or recollection by the witnesses of what happened (the procedure) or they cannot be found or are dead then the presumption of due execution kicks in as long as on the face of the will it looks validly executed. Here the witnesses could recall what

happened, but they were conflicting statements, so you have to resolve the conflict of interest first.

So the presumption could not be used here.

Privileged Testator

A privileged testator does not have to comply with formalities Wills Act S16

1. Members of the military naval or air services who are in actual service

2. Persons engaged in areas outside of Australia who provide charitable or medical services to the defence force.

3. Prisoners of war who were previously in the two categories.

Dispensing Power

Allows a document] to be admitted to probate as a will even though the formal requirements have not been complied with. Must show intention by testator.

Succession Act (NSW) s8(1) ^ and (2)(a) satisfied that the document intended to form whole or part of the persons will (b) modification of will or (c) revocation of will and (3) can rely on external relevant materials to determine T’s intention.

Wills Act (ACT) s11A(1) ^ and (2) which allows use of external relevant materials

Estate of Masters; Hill v Plummer: No formal will given, there was a letter and note but they gave contradicting wills. There was also a 3^rd document in the form of a writing pad found which related to distribution of his estate. The court turned to the testator’s intentions.

The letter was not accepted because it was written for just in case he died, which was interpreted by the majority to mean that the T was going to make a will later and not a final will. This was preferred because u have to figure out the intention by looking at the whole of the context. Here M frequently made comments about what he was going to put on his will and the court believes that letter was M seeking attention because he’s a lonely man. He was conscious to the effect that such reference to property may have on people. So when u look at the letter against that background, it should not go beyond mere contemplation to make a will.

The second note was considered the final will, because he was handing a note to his friend for safekeeping which indicated that he intended for the note to affect the distribution of his property, this it was the final will if he didn’t get around to making one.

The notes found after his death were deemed planning, making a note to himself…he didn’t give it to anyone or address it to anyone else. Therefore at most this was a draft.

What is a document?

Estate of Quinn: Involved a recording made on a deceased person’s iphone and then copied onto the computer. The recording said he wanted to leave everything to his wife but then they separated.

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Court satisfied that the iphone recording was intended to be the will. The recording also had funeral intentions, so it was implied that this recording was to operate after his death. Was considered a document (Succession Act (NSW) s3 tells us to look at s21 Interpretation Act (NSW) which includes any record of information and includes (a) anything on which there is writing or (b) anything with marks, figures, symbols or perforations having meaning and can be interpreted, (c) anything with sounds, images or writings that can be reproduced with or without aid or (d) a map, plan , drawing or photo.

Secret Trusts

Occurs when there’s evidence that T intended the recipient of the give to be a trustee for someone else

1. Is it a full secret trust – on the face it’s a just a normal gift, no mention of creating a trust

2. half secret trust – the will discloses the intention of the beneficiary to be a trustee, but doesn’t for whom or for what. No description of the objects of the trust.

Voges V Monagham Full Secret Trust situation: have to determine if the conditions imposed upon the B are merely suggestions or if they are positive wishes. Court decided that here it was secret trust. There was a letter with instructions on how to take of the widow saying to give 3 pounds per week for 4 years. The B also wrote a letter to the sister about a month later which contained details about leaving 150K for the secret beneficiary.

So you need to show

1. the testator had an intention that the property be used in a certain way 2. the testator communicated that intention to the legatee (the intended trustee) 3. the legatee accepted or at the very least acquiesced.

Timing of communication for secret trusts

Howell v Hyde: for a fully secret trust does not matter if the communication occurred before, during or after the making of the will.

Re Jeffrey: But in relation to half secret trust (disputed view) the communication has to occur before or during.

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Mutual Wills

Mutual wills occur when a person promises to make a will in favour of another person if they make a will in favour of them. Does not have to be identical, just have to have each other.

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