Your Will may not be your last Will

In the recent case of Selig v Selig [2024] QSC 189, the Court considered whether documents titled “My Wishes” and “Nomination of Beneficiaries Form” constituted an informal Will comprising the deceased’s Last Will and Testament, despite the existence of an earlier formal Will.

The deceased, Ronald Selig, died in an accident on 26 November 2022 whilst working on a rural property near Longreach. He had two children with his first wife and two children with his second wife. His second wife, from whom he had separated in about 2008 but not divorced, applied for probate of a formal Will which the deceased had signed in 2003 whilst they were married (2003 Will). The application for probate was dismissed after it was opposed by the children from the deceased’s first marriage. 

Those children (the Plaintiffs) then applied to the Court seeking orders that documents signed by the deceased on 23 April 2021, namely a document titled “My Wishes” and a completed “Nomination of Beneficiaries Form” for a life insurance policy comprised an informal Will, which the deceased intended to be his Last Will and Testament, and to supersede his 2003 Will.

The estate was relatively small, consisting only of the life insurance policy and personal effects of minor value.  Under the “Nomination of Beneficiaries Form”, the $150,000 life insurance benefit was to be paid equally to the Plaintiffs.  The Plaintiffs tried claiming these benefits directly from the insurer, however the insurer denied their claim because the “Nomination of Beneficiaries Form” had not been lodged prior to the deceased’s death. The insurer insisted that a court order be obtained to indicate who was entitled to claim the benefit.

The deceased’s second wife (the Defendant) disputed the Plaintiffs’ claim, alleging that the deceased’s signatures on the 2021 documents were forgeries, and asked the Court to make orders in her favour in respect of the 2003 Will.

The Court had to consider two issues:

1. whether the deceased made an informal Will, and
2. if so, could the Court proceed on a copy of the informal Will as although the original “My Wishes” document was available, only a copy of the “Nomination of Beneficiaries Form” could be provided.

The Court believed the most pertinent evidence was contained in the affidavit of the deceased’s first wife, which was corroborated by evidence from the Plaintiffs.  Despite their divorce, the deceased and his first wife remained friends and had regular contact. The deceased’s first wife deposed that the deceased invited her to his house and asked her to help him write his Last Will and Testament. She stated that the “My Wishes” document and “Nomination of Beneficiaries Form” were already on the table and the deceased asked her to help him complete the documents and he then signed each document in her presence. The deceased communicated to his first wife and the Plaintiffs that his Will was in the top drawer of his bedside table, which is where the informal Will documents were found after his death.

In considering the elements of s 18 of the Succession Act 1981 (Qld) (the Act), the Court determined that together the “My Wishes” document and the “Nomination of Beneficiaries Form” constituted a document that contained the deceased’s testamentary intentions, the evidence established that the deceased signed the documents intending them to be his Last Will and Testament, and the deceased had testamentary capacity at the time he signed the documents. 

The Court accepted the evidence that the original “Nomination of Beneficiaries Form” existed after the deceased’s death and was provided to the insurer when the claim was lodged but the insurer subsequently failed to retain the original document. The Court found that the presumption of destruction of a Will was overcome and it could proceed with a copy of the “Nomination of Beneficiaries Form”.

The Court ordered that pursuant to s 18 of the Act, the formal execution requirements of section 10 of the Act were dispensed with and that the informal Will, comprised of the “My Wishes” document and the “Nomination of Beneficiaries Form”, was the Last Will and Testament of the deceased. The Plaintiffs were appointed administrators of the estate and the Defendant was ordered to pay the Plaintiffs’ costs.

This case serves as a reminder that estate planning documents should be reviewed and/or updated regularly, particularly if your circumstances have changed and to avoid costly court applications about informal documents.

Note: This article appears as a column in Queensland Country Life.