In the Estate of William Edward Dodds (Deceased) [2013] SASC 56

The South Australian Supreme Court was asked to consider whether a copy of a handwritten letter constituted an informal Will and if so whether it impliedly revoked the deceased’s previous Will.

The deceased died in 2011. Two documents were located which appeared to be testamentary in nature. The first document was an original Will which was signed by the deceased in 1998. Pursuant to the terms of the Will the deceased’s estate was to be divided equally between his three children.

The second document was a copy of a letter dated 2009 addressed to a law firm. The letter stated that “this is my last will” and detailed how the deceased wished his estate to be distributed. The letter left specific bequests to the deceased’s children.

No other documents of a testamentary nature were found.

The Supreme Court was asked whether the 2009 letter met the requirements of being an informal Will pursuant to section 12(2) of the Wills Act 1936 (SA) (Act). Section 12(2) of the Act states that a Will may be admitted to probate notwithstanding that it has not been executed in accordance with statutory formalities if the Court is satisfied that:

  • the document expresses the testamentary intentions of the deceased person, and
  • the deceased person intended the document to constitute his or her Will.

The Court considered evidence of the deceased’s conversations with his children. The deceased had communicated to his children on a number of occasions that he had made a Will in 2009 when he was in hospital which was located at the law firm to which the letter was addressed.

The first line of the 2009 letter stated “this is my last will”. This, accompanied by the discussions the deceased had in relation to his “will”, demonstrated that the letter did express testamentary intentions and that he did intend for the 2009 letter to be his Will. Accordingly, the Court was satisfied that the letter satisfied the requirements of section 12(2) of the Act and was an informal Will.

However, as the original 2009 letter could not be located, before a grant could be made the Court also had to be satisfied that:

  • the original letter did exist
  • that the copy was an accurate and complete copy of the original
  • that searches had been conducted to locate the original
  • that the original letter was not subsequently revoked, and
  • that all interested parties consented to the copy of the letter being admitted to probate.

Extensive searches were conducted however, the original 2009 letter was never located. One of the witnesses to the 2009 letter gave evidence that the original letter did exist and that the copy was a true and accurate copy.

The deceased’s children, all being adults, consented to the copy of the 2009 letter being admitted.

The Court considered the deceased’s conduct and statements made regarding the 2009 letter with his children and was satisfied that the deceased did not subsequently revoke the 2009 letter or destroy it.

The 2009 letter did not include a revocation clause however the Court was satisfied that the letter expressed the deceased’s intention to revoke his previous Wills.

Comment: If the deceased had sought legal advice and a professionally prepared Will, the estate would have saved considerable time and cost. Fortunately, in this circumstance there was sufficient evidence to satisfy the Court as to the deceased’s testamentary intentions.

Whilst copies of Wills can be admitted to Probate, evidence must be produced before a copy will be accepted. Ensuring that your Will is stored in a safe location and notifying your executor of the location of your Will is paramount. Piper Alderman retain original documents for clients to ensure that they and their families have this peace of mind.