Legal Hypothetical: What is a wish and what is a will?

KATE makes a will, leaving $200,000 and her motor vehicle to her friend Peter.

She leaves the rest of her estate to her three grandchildren.

Six months prior to her death, Kate writes a note stating: “I wish to leave my house to Peter because he was the only one who was there for me in my times of need.”

Kate signs and dates the document.

She gives the document to Peter later that day.

When Kate passes-away, Peter seeks to have the handwritten note recognised.

Peter makes an application to the Supreme Court, conceding that although the handwritten note does not comply with the requirements of a formal will, which requires its execution to be witnessed by two independent witnesses.

It nonetheless satisfies the legislation which can give effect to an “informal” document if the Court is satisfied that the document is intended to form an alteration to a will and that it embodies a deceased’s “testamentary intentions”.

Peter is tasked with satisfying the Court “on the balance of probabilities”.

The Court accepts that the handwritten note may be seen to embody Kate’s testamentary intentions.

The Court however, notes that Kate was familiar with the legal requirements of making a formal will on the basis that she made her last will just a few years before her death.

The Court also hears evidence that Peter only occasionally assisted Kate with small tasks around the house, provided her with transportation on a couple of occasions and only rarely spoke to her on the telephone.

The Court also found that Kate’s use of the word “wish” was problematic as it did not necessarily evidence a clear intention to make a will.

Ultimately, in also finding that Kate had the opportunity to execute a formal will prior to her death, but failed to do so, the Court dismisses Peter’s claim and orders him to pay the costs of the proceedings.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at or call him on (02) 66 487 487.

This column is only accurate at today’s date and is not legal advice.

By Manny WOOD, Solicitor

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