Evils in Probate Practice

October 11, 2018

Lawyers come across numerous difficulties when helping clients administer estates.   Three common difficulties involve:

  1. Homemade Wills; 
     
  2. Intestacies (when there is no Will at all); and
     
  3. When there has been a change in personal circumstances without updating the testamentary instrument. 

The recent case of (Sloan Executor) -v- Baldrey in the Supreme Court of WA is an example of the 3rd category.   Whilst not a NSW case, it is a good example of what happens when there is a change in circumstances. 
 
The deceased owned a property in Scarborough which was her principal place of residence for more than 25 years.  She sold the property in 2005 and bought another property in City Beach which was also used as her principal place of residence until 2011 when she moved into an aged care facility.
 
The City Beach property was vacant for about 6 months after the deceased moved into the care facility.  The property was then leased to assist with the deceased’s costs of remaining in the facility.
 
The deceased’s Will contained the following terms:
 
“I give my motor vehicle, my household chattels and my principal place of residence at my death to my friend Diana Elaine Davies of 83 Drabbie Road, Scarborough in the State of Western Australia.”
 
The Will also disposed of the residue estate to another beneficiary. 
 
The Court found that the City Beach property (her last residence) was not her principal place of residence as at the date of her death as she lived in the aged care facility even though she did not like the facility and intended to move back to the Unit.  The furniture in the Unit had been sold and was leased which the Court found as evidence that the move was permanent. 
 
The City Beach Unit did not go to her friend Diana Davies but was disposed of to the beneficiary that received the residue.  
 
This case is testimony to the fact that Wills need to be carefully drafted or updated as circumstances change.  

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