WHY YOU SHOULD MAKE A WILL

January 23, 2019 Madsen Law

A case was decided in December of 2018 in the Supreme Court of Queensland which provided some more good reasons why you should have a Solicitor to prepare your Will.

Mr Schwer died on the 24th of January 2018 after accidently overdosing on painkillers.  Mr Schwer died without a written signed and witnessed Will.

What Mr Schwer did have was a video recording of his fairly detailed wishes for the distribution of his estate. Mr Schwer was prompted to make that video recording by his de facto partner before Mr Schwer collected his new motorcycle.  As it turned out his partner’s fears for Mr Schwer were not unfounded because he crashed the bike later that same day sustaining significant head injuries.

The application was made by Mr Schwer’s de facto partner to the Supreme Court for the video recording to be declared to be Mr Schwer’s Will because most of his property would be left to her if the Court accepted her argument.

The deceased’s estranged wife opposed the application, because even though they had been separated for four years prior to his death, they were not divorced and if Mr Schwer died without a Will, she could make a claim to his three super funds, as his spouse.  His de facto partner was also simultaneously his spouse and those two became equally entitled if there was no Will.

The case threw up three questions:-

  1. Is a video recording a document?
  2. Did the video recording purport to state his testamentary intentions (how he wanted his estate distributed after death)?
  3. Did Mr Schwer intend the video recording should operate as his Will?

 

The first question was easily answered because of the extended definition of a document, which includes an electronic record of sounds and images.

The second question was also easily answered yes because Mr Schwer gave detailed and complete instructions as to the distribution of his estate.  Also, Mr Schwer said his girlfriend asked him to do a Will before picking up his motor bike.

The third question was answered yes, because even though he said he would “fill out those damn forms later” (i.e. make a proper Will), the video recording should operate as his Will because:-

  1. He said his girlfriend made him do a Will before he picked up his motor bike;
  2. He said he was making a recording in case anything should happen to him; and
  3. The video recording was clearly a temporary stop gap measure to operate as his Will until he could have it written formally.

What are the takeaway lessons from this case?

  1. If Mr Schwer had obtained a divorce after 12 months of separation, his estranged wife could not have made a claim. The costs of this Supreme Court action would have been significantly reduced as a result.

A do it yourself Will is so often a false economy.  Problems with it are enormously expensive to rectify, if that is even possible.  Having a Solicitor prepare a valid Will is a much cheaper alternative, and much less stressful on your loved ones.