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The Facts
Ambulance called after man has severe diabetic episode
A case in NSW revolved around the question of whether a note on a mobile phone should be admitted to probate as an informal will.
A 79-year-old man had an estate worth $13.6 million.
He had no surviving dependants and lived alone, but maintained close relationships with his older brother and with his best friend, who had become like a son to him.
For years, the man's solicitor had "badgered" him to make a will, but he kept putting it off, saying he didn't know what to do with his money.
On 4 August 2022, the man had a severe diabetic episode in the middle of the night and called an ambulance, as well as calling his best friend, who drove to the man's house.
After the paramedics left at around 3:30am, the man's friend told him he needed to "put in writing what his intentions were with his property" because "none of us know when we're going to go."
Document created in Notes app on iPhone
On the afternoon of the same day, the man created a new document in the "Notes" app of his iPhone. It was entitled "Last Will of [name]" ("the Note").
According to the Note, the bulk of the man's estate, being approximately $10.3 million, was to pass to his best friend, who was also named as executor. Other smaller gifts included one of approximately $990,000 which was to go to the man's brother.
Document found on phone after man's death
Twelve days later, the man passed away in his sleep. He hadn't told anyone about the Note.
When the man's friend and his solicitor searched the man's house, they did not find a formal will.
However, the solicitor discovered the Note on the man's phone.
Brother takes legal action after friend applies for probate
The man's friend then applied to have the Note admitted to probate as an informal will under section 8 of the NSW Succession Act.
In response, the man's brother applied to the Supreme Court of NSW, arguing that the deceased did not intend the Note to operate as his will and therefore had died intestate. As the man's only surviving family member, the brother would inherit the man's entire estate.
The issue for consideration by the court was whether the deceased intended the Note to operate as his will, or whether it was merely a preparatory step towards the making of a will.
CASE AThe case for the brother |
CASE BThe case for the best friend |
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So, which case won?
Cast your judgment below to find out
Sandra Jeremy
Will disputes
Stacks Law Firm
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