What Can We Learn From a Written Will? Tips for Ensuring Will Validity

This story comes to us from the land down under where Howard Edwin Thomas, a former banker, passed away in July of 2021. Thomas created a last will in 2011 and bequeathed (love that word!) his estate, worth around 4.5M Australian Dollars or $3M US Dollars, to his long-term friends Richard and Deborah Nightingale, who were also designated as the executors and trustees of his estate.

Thomas kept his original 3-page will at home and two months after his passing, the will was found “in a pile of dirty papers on the kitchen table” in his Melbourne house. The will had the names of the two friends/beneficiaries “largely blanked out by black ink applied by hand” in two key clauses.

Thomas’ Circumstances:

• Wasn’t married
• Did not have any children
• Did not have any immediate relatives
• Didn’t leave records of alternative beneficiaries

The next of kin, his cousin, petitioned the Court to rule that Thomas intended to revoke the last will based on the markings. The Judge sided with the cousin and held that “The markings effectively obliterate the names of the executors and beneficiaries, on its face stripping the will of its essential elements,” and that the ink markings and “their emphatic expression” on the document showed that Thomas meant to revoke the will in its entirety. The Judge ruled that Thomas died intestate (without a last will) and the friends would not inherit the cousin’s wine!

Lessons Learned:

• One should never write on the last will.
• Writing on a last will may trigger a court hearing for a Judge to rule on the validity of the last will.
• There’s a chance that writing on a last will will cause the last will to be held invalid and thrown out altogether.

It’s unclear as to Thomas’ intentions when he wrote on the last will, and that’s the problem. Had this been brought to a Florida Court, the facts in the case would determine the outcome as whether the will would be held as valid. Either way, it would have been easier for Thomas to destroy his original last will or better yet, to go to the attorney and draft a new last will to remove his friends/beneficiaries and include his new intentions.

And there you have it folks, we learn not to write on our legal documents and that I may want to go to Australia now!