Which case won?

The case for the friend
  • When my friend died, he only had one will which had been formally executed. In this will, my friend left his estate to me.
  • It is true that my friend and I had a falling out in 2015. It was at this point that he had a new will drawn up in favour of a charity.
  • My friend had no prior connection to the charity and considered leaving his estate to the charity purely at the suggestion of his lawyer.
  • My friend and I subsequently reconciled and he never signed the new will.
  • My friend spoke to me on a number of occasions of his intention to leave his estate to me.
  • The court should recognise this as what he wanted done with his estate and should admit the formal will to probate.
The case for the charity
  • The deceased’s most recent expression of his intentions is contained in his most recent will, in which he left his estate to our charity.
  • The deceased gave instructions to his solicitor to revoke and destroy all previous wills which had been made by him.
  • The existence of a signed will in the files of the solicitor was an administrative oversight. This will should have been destroyed and the deceased was not aware the solicitor had it.
  • The deceased had made an appointment to have the new will formally executed at the offices of his solicitor, but was forced to cancel that appointment due to ill health
  • The deceased intended that the new will should be effective immediately and the court should admit this will to probate.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
case a77%
case b23%

Expert commentary on the court's decision

“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.”
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.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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