There are many reasons not to make your own Will or indeed alter an existing Will without the benefit of legal advice. As demonstrated in Boettcher v. Driscoll [2014] SASC 86, even small changes made to a Will can have an undesired effect, resulting in your final wishes not being carried out as you had planned.
Patricia Driscoll passed away aged 85 years, survived by her two children, Annemarie and Michael. She had a properly drafted Will in place with probate granted accordingly. Subsequent to this, Michael sought to have a note, hand-written by his mother admitted to probate as a codicil (a document that amends, rather than replaces, a previously executed Will) to her earlier Will.
The Court was asked to determine the legal status of this hand-written note and its effect. The hand-written note stated:
‘’I Patricia Driscoll wish to amend my Will to read – Michael may have the use of the house for as long as he needs it.”
In David J’s decision he noted that a codicil may be admitted to probate as a Will pursuant to the Wills Act 1936 (SA). In order for this to occur there are three criteria that must be met by the document in question (notwithstanding that these general criteria must be assessed for each application based on its own set of circumstances):
- The document for proof must be one that embodies testamentary intentions;
- It has not been executed with the formalities required by the Act; and
- The Court is satisfied that it is a document in respect of which there can be no reasonable doubt that the deceased intended the same to constitute a codicil to the deceased’s last known Will.
In respect to the hand written note, and its reference to the use of the house for ”as long as he needs it”, David J stated:
‘’…..the May 1994 document exhibits sufficient testamentary intention to be admitted to probate pursuant to s 12(2) of the Act. However, the gift is by way of limitation, the duration of which is so uncertain as to make it void. It is the measure of the gift that is uncertain and therefore the gift fails entirely.
It was ordered that the earlier executed Will stand unaltered.
This case serves to highlight to individuals the risks associated with making their own amendments to Wills.
