The Facts
Old man in habit of making many wills
In the years prior to his death at the age of 87, a man instructed his solicitor on a number of occasions to prepare a draft will for him. It was the man’s practice to attend to signing and witnessing of a draft will received from his solicitor himself, prior to returning the completed will to his solicitor for safe keeping.
In 2015 the man made a will leaving everything to his friend of many years’ standing.
Solicitor drafts new will leaving man’s estate to large Sydney hospital
However, following a falling out between the man and his friend late in 2015, the man destroyed a photocopy in his possession of the 2015 will in favour of his friend and instructed his solicitor instead to prepare a will leaving everything to an institutional charity, being a large Sydney hospital.
In a phone conversation with his solicitor around this time, the man also mentioned that he intended to “leave some gifts to a couple of old friends”.
After receiving the draft will leaving everything to the hospital from his solicitor, the man made an appointment to meet with his solicitor and his accountant in early 2016 to sign the will.
The solicitor understood from this conversation that the will to be signed was the 2016 will leaving everything to the hospital. However, the man’s accountant, who had also spoken to him, did not think that this was the case. In any event, the man never signed the draft 2016 will.
Original 2015 will unearthed by solicitor following man’s death
Sadly, the man died in March 2016. In the weeks before his death, the man and his friend reconciled their relationship. The man expressed to his friend the desire to make a further will, again leaving everything to her. No such will was prepared.
However, some months after the man’s death, his solicitor found in his office the original 2015 will in which the man left everything to his friend.
Friend of deceased commences legal proceedings
The man’s friend commenced proceedings in the Supreme Court of NSW, claiming to be entitled to the man’s estate by virtue of the original 2015 will which had been found in the office of his solicitor.
However, the hospital challenged the friend’s entitlement to the man’s estate. The challenge was on the basis that when the man destroyed his photocopy of the 2015 will, his intention was to cancel this will, and accordingly the draft 2016 will, even though unsigned, should be recognised as the last record of the man’s testamentary intentions.
Expert commentary on the court's decision
NSW Supreme Court finds in favour of deceased’s friend
In the case Re Estate Miruzzi, deceased [2018] NSWSC 1899, the court held that the estate of Mr Richard Miruzzi should pass to his old friend, Ms Leonie Rigney, and not to the Sydney Children’s Hospital, the beneficiary of the informal (unsigned) 2016 will. This was for the following reasons.
The court decided that the fact Mr Miruzzi had made an appointment to sign the 2016 will was not of itself evidence of an intention to adopt this will without any amendments and with immediate effect. This was particularly so because having made many wills in the past, Mr Miruzzi was aware of the importance of signing a will.
The fact that he did not sign the 2016 will, coupled with the fact that he had reconciled with his old friend Ms Rigney, led the court to believe that although Mr Miruzzi had instructed his solicitor to prepare the 2016 will in favour of the Sydney Children’s Hospital, he had not at that time finally decided that the hospital, and not Ms Rigney, should receive his estate.
In the judge’s own words: “More probably than not, the deceased intended to make no new will unless and until he executed a formal will. His established pattern was to make formal wills.”
Third contender emerges for estate of deceased
To further complicate the case, a former spouse of the man, Ms Alessandra Gonella, who said she had been living with him at the time of his death, also claimed to be entitled to his estate.
Ms Gonella’s claim was on the basis that as the 2015 will had been revoked and the 2016 will had not been signed, Mr Miruzzi’s estate should pass to her on intestacy as his de facto spouse.
Discussions of testamentary intentions as a means of cultivating others
Adding to the complexity of the court’s task was the fact that Mr Miruzzi was an elderly man who had accumulated wealth during his lifetime, with the net worth of his estate being around $3.5 million at the time of his death.
The deceased was described by the judge as a “serial will maker” who had made conflicting statements in 2015 and 2016 to Ms Rigney and Ms Gonella about his intentions to favour them in his will.
Further, the judgment noted that it was apparently important to Mr Miruzzi to talk about his property and his testamentary intentions and that such conversations were a means by him of cultivating others.
Destruction of photocopy of will insufficient to effect revocation of will
Mr Miruzzi destroying the photocopy of the 2015 will which he held, while the original will continued to be held by his solicitor, was insufficient to effect a revocation of the 2015 will. Destruction of a photocopy of a will, even if the deceased believed the photocopy to be the original will, is not destruction of the will for the purposes of the law.
For a revocation of a will to be effective, the law requires the actual destruction of the original will. As the judge said:
The formalities of revocation of a will are no less important to due administration of an estate than those governing the making of a will. The intention to make a will and the intention to revoke a will are paramount; but, in practical reality, some formality is required at each stage of estate administration so that the requisite intention can be conveniently verified.
The court therefore found that Ms Rigney was the one who was entitled to receive Mr Miruzzi’s estate, rather than the Sydney Children’s Hospital or Ms Gonella.
Wills need to be revoked as meticulously as they are made
The lesson to be learned from this case is that it is every bit as important to involve your solicitor in the process of revoking a will as it is to involve a solicitor in the process of making a will.
Failing to comply with the legal requirements for revoking a will can lead to disastrous consequences so far as achieving a person’s intended estate planning outcomes are concerned.