A Tale of Two Wills: Can there be Revocation or Unmaking of a Will by Destruction of a Photocopy?

 

Background

The case of Re Estate Miruzzi, deceased (2018) NSWSC 1899 became a dispute between two main parties over which Will, left by Richard Miruzzi, represented his last valid testamentary intentions. Would the beneficiary be an old friend named in a Will that had arguably been revoked? Or would it be Sydney's Children's Hospital which was the beneficiary of a later but unsigned (informal) Will?

The Supreme Court found in favour of the deceased's friend, and Mr Miruzzi’s estate should pass to her. The case demonstrates the importance of complying with the formalities of revocation before a Will is validly cancelled.

Key Facts

Richard Miruzzi was a habitual Will-maker. In 2015, he made a Will leaving everything to an old friend, Ms Leonie Rigney. However, they fell out later in the year, and he destroyed his photocopy of this Will and instructed his solicitor, Mr Kennett, to prepare a new Will leaving everything to Sydney's Children's Hospital.

Richard Miruzzi died in March 2016 aged 87. Three weeks before his death, Mr Miruzzi and Leonie reconciled, and he indicated to her that he wanted to make a Will leaving everything to her. On 16 February 2016, he made an appointment to see his solicitor but, following a fall, he was admitted to hospital and died without having signed any further Wills.

Following Mr Miruzzi's death, Ms Rigney started proceedings to have the 2015 Will admitted to probate but the Children’s Hospital claimed that the 2016 informal Will should be admitted. The Children’s Hospital argued that when Richard Miruzzi destroyed his photocopy of the 2015 Will, he intended to cancel this Will and the draft 2016 Will. Even though it had not been signed, it should be recognised as the valid Will expressing his testamentary intentions.

Muddying the waters further was that a former spouse, Ms Alexandra Gonella, claimed to be a de facto spouse and argued that, as the 2015 will had been revoked and the 2016 Will had not been signed, the estate should pass to her.

Key Issues

Section 11 Succession Act 2006 (NSW) outlines when and how a Will can be revoked. Revocation can, for example, be achieved by:

·       making a new Will to revoke an earlier Will;

·       the marriage, divorce or annulment of a will-maker’s (testator’s) marriage;

·       destroying, burning, or tearing up an old will with the intention of revoking it.

A testator can revoke a Will at any point of time before their death.

In this case, the key questions for the Supreme Court were, firstly, whether the 2016 draft Will was an informal but valid Will? Secondly, if that was not the case, had the 2015 Will been revoked by the destruction of Mr Miruzzi's photocopy?

As regards the 2016 informal Will the Court stated:

"The deceased's testamentary intention must be found not in any initial instructions given to Mr Kennett but in an intention (as at or about the time the deceased contemplated an appointment ‘to execute, or to sign, the will’) manifested by the deceased on or about 16 February 2016.”

The evidence suggested to the Court that the deceased did not have a settled testamentary intention at the time. The Court was not satisfied that the making of an appointment meant that the deceased intended to adopt the document as his Will with immediate effect and benefit the Children’s Hospital over his friend Leonie Rigney.   Although Mr Miruzzi had made an appointment with his solicitor, apparently to sign the 2016 Will, this was not regarded in itself as evidence of an intention to complete the Will without amendment. This was especially so because, being a "serial Will-maker", he was aware of the importance of signing a Will and the Court commented:

“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.”

Concerning the destroyed photocopy of the 2015 Will, the Court stated:

“Destruction of a photocopy of a will, even if believed by a testator to have been the original of the will, is not destruction of ‘the will’ for the purpose of s11(1)(e). The legislation requires an actual destruction of the will.”

 Mr Miruzzi destroying his copy, while his solicitor retained the original, was insufficient to revoke the 2015 Will.

For revocation to be effective, the law requires the destruction of the original Will. Moreover, it was stated:

“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.” 

What does it mean?

The clear lesson from this case is that it can be as important to involve a solicitor in revoking a Will as it is in making one. As the Court commented:

 “This case suggests that, if the making of a will prudently warrants the direct involvement of a lawyer trained in the art, so too may the unmaking (revocation) of a will.”

It is beneficial to revoke a Will in writing, as this clearly demonstrates intention. Failure to comply with the legal requirements for revoking a will can result in undesired outcomes as far as estate planning is concerned.

To manage the risk involved, it is important to clarify the Will-maker's intentions before the signing of the final Will, which will typically contain a revocation clause.

Contact our Wills and Estate Lawyers in Sydney, NSW

Szabo & Associates Solicitors are experts in all aspects of estate planning as well as preparing, updating, revoking and contesting wills. Please contact us on (02) 9158 6333 or fill in our online contact form.