In Re the Will of Fernando Masci  QSC 281
This Queensland case concerned a poorly drafted joint Will which was executed after having been prepared by the Willmakers’ themselves on a pre-printed form.
Mr Masci died on 7 February 2012. His second wife, Mrs Masci, survived him. Both he and his wife had previously been married and both had children from their previous marriages. Mr Masci had three children from his first marriage, Graham, Diane and Ricky and Mrs Masci had one daughter, Susan from her first marriage.
Mr and Mrs Masci executed a joint Will on 2 April 2006 (the Will) after having drawn it themselves on a pre-printed form.
There was no suggestion that the Will had not been executed in accordance with the requirements of section 10 of the Succession Act (QLD). The Will appointed Mr Masci’s son, Graham, and Mrs Masci’s daughter, Susan, as their executors. It was evident that the two could not co-operate as executors.
The following clause caused confusion:
I give Fernando Masci my husband is to stay in the house above and to handle all monies until his demise. (death) Elizabeth Masci is to stay in the house above and handle all monies if Fernando Masci is deceased before her. On the death of both Mrs Susan Camm of… and Graham Silvano Masci of… are to sell all possessions and 50% is to go to Mrs Susan Camm and 50% to Diane Collins, daughter of Fernando Masci, Ricky Fernando Masci son of Fernando Masci and Graham Silvano Masci son of Fernando Masci. This is to be reversed if either is deceased first.
Graham sought advice, declarations and orders on the following points:
whether the Will could be admitted to probate (doubt being raised by its being so uncertain)
whether the joint Will was a mutual Will
whether or not the Will severed the joint tenancy in which Mr and Mrs Masci held their home
what the words “all monies” in the Will meant for Ms Susan Day to be removed as an executor.
A cross application was brought by Mrs Masci and asked for both executors to be removed and a solicitor, to be appointed as an administrator instead, with consequential orders for the property and records of the estate to vest in them.
The Court ordered that Probate of the Will of Mr Masci be granted to Graham as executor. The Court also made a declaration that the Will was a mutual Will and that the joint tenancy in which Mr and Mrs Masci held the land situated in Merrimac, Queensland (Land), was severed, at least from the death of Fernando Masci. Finally, the Court made a declaration that the Will gave Mrs Masci a life estate in the Land, and all the monies of Mr Masci whether held in his own name or jointly with her.
The Court gave the following reasoning for their decision:
On the facts, reading the Will as a whole, it could be sufficiently constructed to sensibly give effect to it. Therefore, it could be admitted to probate.
Having regard to the family circumstances of both Mr and Mrs Masci at the time they made the Will, the fact that the Will was a joint Will, and the substance of the provisions of the Will (to benefit the couple’s respective families equally) the Court was prepared to imply a term that this joint Will was not to be revoked by either Mr or Mrs Masci without giving notice to the other and therefore it constituted a mutual Will.
The provisions in the Will that after the death of either Mr or Mrs Marci, the survivor was only to have a life interest in the property which they hold as joint tenants was inconsistent with the continued existence of the joint tenancy and that severance occurred, at least from the date of Mr Masci’s death.
- The word “all” was clear, and referred to all the monies of both Mr and Mrs Masci, whether held in joint accounts or otherwise. Further, there was nothing in the Will that showed any intention that the executors were to take charge of any money which was not joint money until the death of the survivor.
- The Court has power to remove an executor pursuant to section 6 and possibly section 52(2) of the Succession Act, sections 5 and 80 of the Trusts Act and pursuant to its’ inherent powers because the administration of this estate would have been prevented by the inability of the two people appointed executors to co-operate. Neither executor had acted perfectly to this point, however, neither had acted in a way which was not understandable in the circumstances. The Court preferred Graham as it found that he was more likely to be able to act independently.
This case highlights the problems that can occur with DIY Will forms. For the legal editors of this publication there are numerous legal issues that caught our interest. From a practical consideration, quite simply many of the issues addressed in this case and the time and expense of having a Court resolve the problem could have been avoided had the deceased and his wife had their Wills professionally drafted.