Farrell v Boston [2016] QSC 278

LastWillFACTS

Erris Farrell died in October of 2015. She had made at least two wills in her life; one in 1984, and another in 2007. There was a third purported will, dated 2013.

Following her death, Warren Boston – the executor of her estate under the 2007 will – obtained a grant of probate in relation to the 2007 will.

Martin Farrell – brother-in-law of Erris Farrell, made an application to have the grant of probate set aside on the grounds that it was granted on a mistaken belief that the 2007 will was Mrs Farrell’s last will.

Martin Farrell produced a will dated 2013, which he alleged was the last will of Erris Farrell. He did not produce any sworn testimony to explain how that will came into being. He made submission to the effect that he had assisted Erris Farrell to produce it using a will-kit he purchased from a newsagency.

Three wills were examined by the court: the 1984 will, the 2007 will, and the 2013 will. The court noted that the 1984 and 2007 wills were the most strikingly similar both in the signature of ‘E. Ferrell’, and in the dispositions that were made. It was summarised as being the same as the 1984 will, with updates to reflect those who had died since 1984. In contrast, the 2013 will made markedly different dispositions bore the signature of ‘Erris Ferrell’.

Furthermore, the 2013 will bore signatures of two witnesses, the writers of whom did not give evidence, and it did not have the section providing for witnesses’ names and details completed.

The allegation by Martin Ferrell was that an imposter had been procured to pose as Mrs Ferrell for the purposes of making the 2007 will.

A report of Erris Ferrell’s doctor was produced in which she expressed the view that Mrs Ferrell would not have had legal capacity to produce a will in 2013.

LEGAL ISSUES

Was the grant of probate in respect of the 2007 will made based on a mistaken belief that it was the last will of Erris Ferrell?

 FINDINGS AND CONCLUSIONS

Focusing on the consistency of the earliest two wills – 1984 and 2007 – the court formed the view that the grant of probate was properly made. The court was primarily concerned that not only would Mrs Ferrell have had to have been competent to make a will in 2013, but that to make the 2007 will, and imposter would have had to have been obtained to pose as her on three separate occasions. On one of those occasions the solicitors for Mrs Ferrell met with her at her nursing home, and the ruse gone undetected by staff.

On the whole it was quite impossible to authenticate the 2013 will, in contrast the 2007 will was readily authenticated.

TAKEAWAY

In preparing a will it is vital to ensure both that the testator is legally competent at the time, and that all proper formalities are followed to ensure the will can be readily authenticated at a later time.