Another Pro Forma Will Disputed in Court

By Lucille Moala • In Estate Planning, Estates, WillsComments Off on Another Pro Forma Will Disputed in Court

The Queensland Supreme Court case of Rhodes v Rhodes (as Executor of the Will of Cecil Ronald Rhodes) & Ors [2017] QSC 21 serves as a timely reminder that pro forma Wills are a poor substitute for proper estate planning advice and drafting.

In this case, the deceased left his estate by writing in the “Residuary Estate” clause of his pro forma Will:

ALL MY WORDLY GOODS TO MY EX WIFE WHO WILL DISTRIBUTE IT TO MY CHILDREN AS SHE SEES FIT.

Unsurprisingly, there was a dispute between family members as to whether the deceased intended to leave his estate to his ex-wife absolutely or to create a trust in favour of the deceased’s children.

The deceased’s ex-wife claimed that the deceased’s estate should be left to her absolutely and that the words indicated the deceased’s mere hope that she would distribute something to the deceased’s children. The ex-wife argued that she was not required to distribute anything at all. The Court disagreed.

The Court said that the deceased’s choice of words “who will distribute to my children” was significant. The Court held that the choice of words amounted to a mandatory requirement on the deceased’s ex-wife to distribute the estate to the deceased’s children “as she sees fit”.

This case is one of a series whereby a pro forma Will has resulted in family members carrying out costly litigation which could have been avoided if the deceased sought proper estate planning advice at the appropriate time.

If a Will is not carefully drafted, the executor could be forced to bring an application for the Court to determine the proper construction or interpretation of the Will. Any application to Court will cost more than proper estate planning advice would have cost the Will maker.

If you are considering making a Will or want to seek advice regarding your Will, please contact a member of our experienced Estate Planning team.

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