02/02/2010

Although a properly drafted, signed and witnessed Will is regarded as indisputable evidence of the deceased’s final intentions, that Will can be challenged if the deceased had earlier promised to leave their estate in a different way.   

In a recent Supreme Court case Joseph Saliba v Tarmo (109) NSWSC 581 carers challenged the Will of the deceased on the basis that they were promised a gift of half of the deceased’s estate which was later revoked. 

The plaintiffs, Mr and Mrs Saliba, were neighbours and close friends of the deceased.  When the deceased’s husband passed away in 1989, she lived alone and had no relatives in Australia.  Mr and Mrs Saliba took care of the deceased until 2001. 

In November 2001, she took the plaintiffs to her solicitor and in their presence instructed the solicitor to draft up a Will and leave half her property to the couple, which was duly signed and witnessed. 

The deceased continued to receive personal care from the plantiffs.  In October 2005, however, the deceased saw another solicitor, instructing him to act as her executor and leave only $10,000 to the couple.    

The couple challenged the Will, arguing that they had acquired a beneficial interest in half of the deceased’s estate.

The court held that the plaintiffs were entitled to half of the estate.  To arrive at the decision, the court took into account the following:

1. There was a common intention about what would happen with the estate which was made clear by the first Will
2. There was substantial action by the plaintiff as a direct result of the deceased’s representation or promise of a benefit.
3. The deceased was guilty of unconscionable conduct by failing to keep her promise.  

It is therefore important to document your testamentary intentions carefully in order to limit future arguments between potential beneficiaries.  

For further information or assistance regarding Estate Planning, please contact Peter Townsend of TOWNSENDS BUSINESS & CORPORATE LAWYERS on (02) 8296 6222.