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Re: Estate of Carrigan (deceased) [2018] QSC 206

Shortly before passing away the testator made a change to his will by declaring on an audio tape recording that each of his two children should receive 50% of his $6 million life insurance policies instead of his wife, who was a beneficiary of these policies. The issue before the court was whether that was a valid amendment under the requirements of s18 of the Succession Act 1981 (QLD).

LEGAL PRINCIPLES

Whether the deceased intended that message to form a part of a will depends on satisfaction of 3 requirements:

  1. There was a document
  2. The document purports to embody the testamentary intentions of the deceased
  3. The deceased has by words or conduct demonstrated the deceased’s intention for this document to be his final and operative will

Testamentary capacity is a relevant consideration in assessing satisfaction of these requirements, as the deceased cannot be presumed to have testamentary capacity in the absence of a formally executed Will.[1] The onus of proving this capacity is on the person seeking to establish the deceased intention for the informal will to constitute his final will.

JUDICIAL FINDINGS

The court found that the recorded conversation constituted a document. It was also held that the recorded message purported to embody the testamentary intentions of the deceased, because the language he used (‘I  leave every asset I own to my wife’, ‘my life insurance policy will be split in two’) referred to what was to be done with his property upon his death. Finally, it was held that by his clear words (‘…This is my last Will to be the final one over anything else I’ve got written…’)

the deceased demonstrated the intention for this informal will to be his final and operative will. In regard to the deceased’s testamentary capacity it was held that the fact that at the time when he recorded the message he was about to take his life does not give rise to the presumption that he lacked testamentary capacity. Further, the content of the recordings indicated the deceased’s clear ability to evaluate his estate and distribute it between his wife and children, which indicates a presence of testamentary capacity. Finally, his mistaken assumption that he was entitled to dispose of the proceeds of his life insurance policies other than to the beneficiary (his wife) was a legal error, which did not infect the existence of testamentary capacity.

DECISION

Overall it was held by the court that the deceased possessed testamentary capacity and that his will was validly amended via the voice recordings, which complied with the requirements of s18, Succession Act.

COMMENT

While the testator’s apparent wishes in the tape recording prevailed in this case, it is a risky method of estate planning. There are many other considerations such as method of burial / cremation, whether beneficiaries wish to receive legacies in their own names and so on.  In other words: ‘An ounce of prevention is worth a pound of cure’.

[1] Re Spencer (deceased) [2014] QSC 276; [2015] 2 Qd R 435.