Section 8 of the Wills Act 2000 (NT) (the “Wills Act”) provides that a will is not valid unless it is written, signed by the testator – or by some other person in the presence of and at the direction of the testator; and is signed by at least 2 witnesses present at the same time, who attest and sign the will in the presence of the testator.
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Background
Peter O’Shea (“the deceased”) died on 14 April 2020; Peter and his wife, June had three children: Kim(the First Defendant), Kerri (the Plaintiff), and Jodi-Maree (the Second Defendant). His estate was valued at about $1 million. Peter had little to do with lawyers during his lifetime, and despite enquiries including searching the deceased’s papers, a newspaper advertisement and enquiries of numerous Northern Territory solicitors, a formal Will has not been found.
Until his retirement in October 2011, Peter was actively engaged in his finance business. He also managed his own share portfolio.
The Informal Will
On 24 May 2011, Kerri accompanied Peter to a medical appointment following which he asked his doctor to witness a Document. While the doctor was doing this, Kerri realised the papers were a Will. Later, Peter told her,
“The will is locked in the bottom drawer of the safe. I’ve left everything to everybody to be as fair as I can see it.”
Peter put the document in two sealed envelopes writing on both
“Last Will and Testament of Peter Desmond O’Shea dated 24th May 2011”
and signing his name underneath. Until he retired in October 2011, only Peter and Kerri had keys to the office safe. Following that, only Kerri had keys to the safe.
The Action
Kerri sought a declaration pursuant to s 10(2) of the Wills Act for an order that the informal document dated 24 May 2011 is the Will of Peter Desmond O’Shea.
Section 10 of the Wills Act provides that the Court may dispense with the strict formal requirements if they are satisfied:
(a) There is a document.
(b) The document purports to embody the testamentary intentions of the deceased person.
(c) The document has not been executed in the manner required by the Act.
(d) The deceased person intended the document to constitute his Will.
In determining the application the Court may have regard to:
(a) the document itself,
(b) any evidence relating to the manner of execution of the document; and
(c) any evidence concerning the testamentary intentions of the deceased.
The onus is on the plaintiff to establish on the balance of probabilities that the document relied on as constituting the Will of the deceased fulfils the criteria in s 10(2) of the Wills Act.
The Defendants
Kim and Jodi-Maree had concerns that the document purporting to be their father’s Will may have been tampered with so they obtained a report from a handwriting and forensic document expert.
The parties agreed that the experts report should be received in evidence and that the Court’s decision should be made “on the papers” with the evidence contained in the affidavits filed in the proceedings be taken as uncontested.
The Decision
The Court found that Peter intended the document to constitute his Will, and that it should, without more, operate as such.
Similarly, as there had been a falling out between the sisters, the parties agreed that, rather than seeking probate of the Will in the names of all or some of the executors, an independent person should be appointed as administrator of the estate.
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