Apart from reading the latest Court judgments to keep up to date with the latest developments in the law I also try to keep an eye out for those cases that are just good, modern examples of well established law.
As I was trawling through the usual dry case reports I came across one from the Supreme Court of South Australia in November 2014 that ticked that box for me called Menz v Menz , which illustrates the importance of both having your Will prepared properly by a lawyer, rather than trying to do it yourself, and doing so promptly once your marriage breaks down. In this case the Supreme Court had to decide whether a Will made 36 years earlier was still valid, or whether another later document was the deceased’s correct last Will and testament.
Mr. & Mrs. Menz got married in 1978 and shortly after Mrs. Menz made her Will with a lawyer that said that, so long as he outlived her, she left everything to her husband. So far so good, but by 2010, after 32 years of marriage, the honeymoon glow must have faded because Mr. & Mrs. Menz then separated. In 2012, proceedings were commenced in the Family Court of Australia for a divorce order between the not happy couple. On 16 April 2013, a “decree nisi” divorce order was made in those proceedings (divorce orders do not usually become “absolute”, or final, immediately – first a decree nisi is made and then after 30 days, provided nothing has happened in the meantime to prevent it, the divorce decree then becomes absolute).
The Wills Act (both in South Australia and in Victoria) says, in effect, that once you are divorced then any bequest to your “ex” you may have made in a previous Will while you were married is revoked. So, once the Menz’s divorce order became final, the bequest Mrs.Menz had made in her 1978 Will leaving everything to to her then husband would be revoked.
Sadly however on 8 May 2013, just 8 days short of her divorce becoming final, Mrs. Menz passed away – and Section 55 (4) of the Family Law Act says that “A divorce order does not take effect by force of this section if either of the parties to the marriage has died”. So the decree nisi divorce order never became absolute, and at the time she died Mrs. Menz was still legally married to Mr. Menz. It therefore looked like the 1978 Will in which she left everything to her then (but since estranged) husband would stand. By the way, this was no small issue as, by the time of her death, Mrs. Menz’s estate had become worth about $1.3 million.
But then, and to his credit, the Plaintiff (i.e. the husband) produced to the Court an old, coffee stained envelope he had found amongst his late wife’s personal effects after her death which had written on it:
“House + car to Tilda for as long as she needs.
$50000 in bank – 2/3 to Tilda, the rest equal between the 3 kids. Pictures & jewellery as agreed.
NOT to go to any hospital.” (FYI the “Tilda” referred to on the envelope was one of Mrs. Menz’s daughters – so according to the envelope Mrs. Menz wanted her house and car to go to Tilda “for as long as she needs” plus two-thirds of the $50,000.00 she then had in the bank, and the remaining one third of the money in the bank to be divided up equally between her other children).
In its’ judgment the Court said this about the envelope and the relevant law:
“The nature of the writing appearing on the envelope, as extracted above, gives rise to the possibility that the document is testamentary in nature. The document appears to have been signed by the deceased, but has not been signed by any witness. No party has come forward to propound the document as an informal will in accordance with section 12(2) of the Wills Act.
- In the recent decision of Spoehr v Health Services Charitable Gifts Board, I considered the situation that arises where the court is presented with a document of an apparently testamentary nature which no party seeks to propound. That case concerned an application for judgment by consent that the Court pronounce against the force and validity of a document of an apparently testamentary nature. It was alleged that the testator lacked capacity at the time of the making of the document. Pursuant to a settlement agreement, the sole beneficiary under the document consented to an order being made pronouncing against the validity of the document and a grant of letters of administration of the deceased’s estate being made to the plaintiff. After reviewing the relevant authorities, I concluded:
In summary, the authorities give rise to the following principles regarding contentious probate actions where orders are sought by consent, in default or by reason of being undefended. The Court does not have a duty to conduct any independent investigation in relation to the validity of the will. However, in cases where an order is sought pronouncing against a will, the Court should conduct an investigation where circumstances exist which give rise to a well founded suspicion that the document is not valid and no party comes forward to rebut those circumstances.
- In Kwog v Ng, the testator had executed a will in 2002. A later document, apparently a copy of the earlier will with handwritten amendments, was found following the testator’s death. No party sought to propound the later document. After reviewing the evidence before the Court, I ordered that there be a grant of probate in solemn form of the 2002 will and observed:
The later document has not been proved to be anything more than a possible draft testamentary disposition. The evidence does not establish that the deceased had intended the document to be testamentary in effect. I am not prepared to find that the later document represents anything more than the views of the deceased about possible changes to his will.
When regard is had to the terms of section 12(2) and to the findings that I have set out above, it is evident that the later document does not meet the terms of section 12 and that accordingly, there is no later testamentary disposition and in particular, there is no document seeking to revoke the 2002 will.
- In James v Gaye, the testator had executed a will in 2000. There were a series of apparently informal testamentary documents. No party came forward to propound those documents. White J stated:
If no beneficiary who might take under any of the informal testamentary instruments seeks a declaration that any of those instruments forms the will, or the amendment or revocation of a will, of the deceased, then the plaintiff is entitled to a grant of probate in solemn form of the 2000 will. Whilst there is evidence that the deceased suffered a mental illness, there is no evidence to displace the presumption of capacity in 2000 arising from the due execution of that will. The deceased’s then capacity is attested to by the solicitor who prepared the will. There would be questions concerning the deceased’s capacity to make wills in 2010 as well as whether the deceased intended the documents to form his will. If none of the potential beneficiaries under an informal instrument seeks to propound it, there is no reason not to make a grant of probate in solemn form in respect of the 2000 will (Re Grey Smith  VicRp 56;  VR 596; Wheatley v Edgar  WASC 118; (2003) 4 AS TLR 1; Buckley v Buckley  WASC 184).
- Returning to the present application, I consider that the nature of the handwritten writing appearing on the envelope is such as to give rise to a well founded suspicion that the document is not a valid testamentary instrument. The existence of the 1978 will indicates that the deceased was aware of the process of attending a solicitor and formally executing a testamentary document. Despite this, there is no evidence before the Court to suggest that the deceased took any steps during the period of more than seven months between the writing of the envelope and her death to formally execute a new will or codicil. No party has come forward to propound the envelope as a will. In these circumstances, I consider it appropriate to make an order pronouncing against the validity of the envelope.”
So the Court declared that the envelope was not a valid testamentary document (i.e. not a Will), and declared that the 1978 Will leaving all to Mr.Munz was the last valid Will of the deceased.
Fortunately for the Munz children however their father gave evidence to the Court that, even though the 1978 Will left everything to him, he had reached an informal agreement with his children that the deceased’s estate would be distributed in accordance with her wishes as expressed in the writing on the envelope. In particular, it was agreed that Matilda would receive two thirds of the deceased’s estate and that the rest would be shared equally between the other children. The sum of $75,000.00 in the deceased’s bank account would be kept separate and used for shared activities, such as family holidays. It must be stressed thugh that if he had wanted to Mr.Munz could have stuck by the provision sof the 1978 WIll and insisted on having it all for himself (although the children may then have been entitled to make a TFM claim against the estate).
So, two important morals come out of that story – first, if your marriage breaks down for good make a new Will revoking your old Will asap and secondly, get a lawyer to do it properly for you. Time and again I see people bring in “home made” Wills they have done for themselves on a bit of paper (including envelopes), or by filling out one of thse “will kits” you can buy at the Newsagents, and I shudder each time I see one: because as often as not it has not been done properly and is wholly or partly invalid. Given the value of real estate nowadays, any deceased estate that includes a house or land is probably going to be worth hundreds of thousands, if not millions, of dollars; so it is really being “penny wise and pound foolish” to try saving a few dollars by doing your Will yourself, even if you use a kit. If it is not done promptly and properly then a deceased’s family could find themself in a “Munz situation”, but without someone like Mr. Munz – who was still prepared to honour the intent of his ex-wife’s last wishes, even though it cost him over a million dollars.