For various reasons, sometimes a person instructs a solicitor to draft a Will on their behalf, but the document is never signed by the client. So, what happens when the wheels are in motion, but the document has not been executed (eg signed) by the prospective testator?
Two recent cases exploring the question of draft Wills have been considered below.
The facts of this case were that the deceased had instructed his solicitor to draft a new Will on his behalf in 2016. The client unexpectantly experienced ill health and never attended to executing the draft Will. The deceased was a ‘serial Will-maker’, having made numerous Wills in the five years preceding his death.
The Deceased’s had previously made a Will in 2015. The sole beneficiary under this Will was his family friend, Leonne. The Deceased had no living children and he was not in a relationship at the time of his death.
Under the draft Will, the deceased proposed to leave his entire estate to The Children’s Hospital at Westmead. His solicitor had suggested this course of action, following the deceased having ‘fallen out’ with Leonne. There was no mentioned of Leonne in the draft Will. Notably, the pair had reconciled by the date of his death.
The question for the Court in this matter was whether the deceased intended to adopt the draft Will as his final Will. Based on his established pattern of making formal wills, the Court held the deceased did not intend to make a will unless and until one was executed formally. Emphasis was placed on the fact that the deceased had not contemplated the immediacy of his death at the time the draft Will was prepared.
The requirements of s 8 of the Succession Act 2006 (NSW) were not fulfilled. The draft Will was not admitted to probate.
Last year, the Victorian Court of Appeal handed down the decision of Sultanova v Bolgarow  VSCA 245.
The facts of this case were that Ms Elzow (aged 91) instructed her solicitor to prepare a new Will on her behalf, just weeks before her death. She had executed a previous Will in 2010, when her estate had an estimated worth of around $970K.
In respect of the 2010 Will, the balance of Ms Elzow’s estate was left to five of her overseas relatives in equal shares. This Will also bequeathed $10K to each of Ms Elzow’s executors, and she left three legacies of $1K to charities of her choosing. By 2016 (being the year she proposed to make a new Will), Ms Elzow’s estate had almost doubled in value. While she knew her estate had increased, she did not realise to what extent.
The effects of the draft Will were such that Ms Elzow’s five overseas relatives would inherit $180,000 (being an amount largely equivalent to that bequeathed under her 2010 Will), with the residual of her estate to fall to her close friend, principal carer, co-executor and goddaughter, Valentina.
The draft Will was never sighted by Ms Elzow, nor read to her in its totality. The contents of the draft Will had, however, been summarised to Ms Elzow. Evidence established that Ms Elzow had an informed understanding of how the draft Will differed from her 2010 Will. Pertinently, Ms Elzow approved of the prepared document via telephone, having expressly stated to her solicitor that it was ‘exactly what she wanted’ and ‘settled’.
Ms Elzow had asked her solicitor to visit her residence as soon as possible, to enable her to duly sign the Will. Unfortunately, her solicitor was unable to do so. He instead suggested that another solicitor visit for the purposes of enabling the Will to be signed. Ms Elzow was not agreeable to this arrangement, as she only trusted her solicitor.
The question for the Court was whether Ms Elzow had adopted the draft Will, with the intention that it would be her final Will. The Court answered this question in the affirmative. Notwithstanding that it is common for testators to change their mind after giving instructions for a new Will to be drafted, in the circumstances the Court was satisfied that Ms Elzow’s intentions were clear.
The new Will was admitted to probate under s 9 of the Wills Act 1997 (VIC).
It is a question of fact as to whether a draft Will ought to be recognised as the final Will of a deceased person. Case law demonstrates that it is possible for probate to be granted in respect of a draft Will, in circumstances where the document has never been sighted, read to and/or signed by the deceased.
The decision in Sultanova v Bolgarow  VSCA 245 was recently criticised by a former judge of the Supreme Court of New South Wales, The Hon William V Windeyer. Caution should always be taken in New South Wales when relying on s 8 of the Succession Act 2009 (NSW). Where possible, a draft Will should always be executed.
If you would like to know more about the validity of a Will, we would be pleased to speak with you to advise you about your options. You can either book an appointment online or call us on (02) 4050 0330 for an obligation-free consultation.