Informal notes and their validity as a properly drawn will

The 2017 case of Borthwick v Mitchell was required to consider whether informal notes dictated by the deceased prior to his death, when he was hospitalised and gravely ill, constituted a valid will.  The deceased left no other validly recognised will.  The deceased was close to death when he dictated the notes that allocated various items of property to named beneficiaries in the document that was unsigned and at the top of the page had the words “Dad’s wishes” inserted by the person to whom the notes were dictated.

The court was required to consider the state of health of the deceased in light of the notes and the fact that shortly after the dictation of the notes the deceased suffered a type of seizure so there was no opportunity to provide any instructions to his solicitor as to preparation of a written document.

Evidence was taken as to expressions of intention by the deceased over the years as to disposition of his estate which accorded with the notes “dad’s wishes”.  The court noted that the deceased did not make a mark on the notes to indicate his acceptance of them nor did he ask to read them over.

The court was required to consider the relevant provisions of the Succession Act (NSW)as to creation of a valid will which provides that the document must be in writing, signed by the testator in the presence of witnesses and the document must purport to state the testamentary intentions of the deceased.

The court determined that the notes had been dictated at a time that the deceased knew his condition to be serious and, in this context, such notes were in fact testamentary intentions.  Of great importance is the acknowledgement by courts that each case turns on its own facts in making any determination.  In this case the deceased had intended the notes to be a “stopgap” measure until he could instruct his solicitor.  The notes were not mere proposals or intentions of a future situation: they were expressed intentions in a “stopgap” document.

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