The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

Who got the house?

Last week the Supreme Court of Victoria handed down a decision which reinforced the vital need that you make sure you get your will done right.

In the matter, the deceased, a Marietje Stuckey, had attempted to change her will when she was terminally ill in hospital. The change she wanted to make was to leave her house to her sister rather than be divided between her two sons.

As Ms Stuckey was very ill and in hospital, she attempted to make the change by making an attempt at a codicil (or update) to her previous will. The codicil was one page, on a printed page of nursing notes from the hospital. The codicil had not been signed by Ms Stuckey or any witnesses. The evidence the court considered included a was a videorecording made on a phone of Ms Stuckey reading the words on the document as she sat "in her hospital bed, propped up in a sitting position".

It is possible for a court to find a document that does not fulfil all of the strict criteria for an effective will — being signed by the willmaker, being witnessed by two adult independent witnesses and so on — to be an "informal will" and the estate distributed in accordance with that will. In the judgement in this case, Her Honour Kate McMillan found that this document did not amount to an "informal will" and that the original will stands. This means the sister does not receive the house and instead it is shared between the sons.

So, what are the lessons from this case?

  1. When faced with a terminal illness, you should turn your mind to reviewing your will urgently — this situation would have been avoided if changes to the will had been sorted sooner
  2. Make sure your will is prepared by a lawyer as they will arrange for it to be signed in the way that ensures it is valid
  3. Even modern technology like videoing is no substitute for a properly signed and witnessed will
  4. Avoid codicils