Why it is important to have a valid and up to date Will

A recent court case has highlighted the need for you to have a valid and up to date Will. In a case involving the estate of the late Mr Thomas, a will was found at Mr Thomas’s home following his death in 2021.

Friends of Mr Thomas, Richard and Deborah Nightingale, and his nearest living relatives led by his cousin Gregory Campbell, issued a proceeding in the Supreme Court of Victoria

Under the Will validly made in 2011, Mr and Mrs Nightingale had been appointed as executors and trustees of his estate, as well as being the estate’s sole beneficiaries. However, at some point between the making of the Will and his death, the Court found that Mr Thomas had deleted the names of Mr and Mrs Nightingale as both executors and beneficiaries from the Will using black ink.

As the Will contained no other directions, the Court found that the Will was invalid as a result of the markings made by Mr Thomas. It lacked essential information including the nomination of at least one executor and instructions as to who would receive his estate upon his death.

This case highlights the confusion and stress that can be caused when a person passes away without a valid Will and the unnecessary time and money that can be wasted in addressing such a situation.  While there are laws in place in every Australian state to govern who will receive your estate should you die intestate, (when you die without a valid Will) the person or people who then may receive your estate in such a circumstance may not be those who you would otherwise have chosen.  

Apart from making a valid Will, it is important to ensure that the Will you have is always kept up to date to reflect your most recent intentions in a clear and concise manner.

We also recommend that where you have a valid Will in place, you let those charged with finalising your estate know where the original Will document is stored.  This will save much time and grief for your appointed executor in trying to locate the Will document at the relevant time.

If you wish to discuss your will, please contact our Wills and Estates Team on (03) 9870 9870.

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