“As Told by Hassold”: A Tale of Many Wills

We were instrumental in getting this tale over the line earlier this year and now we take the time to reflect on the work required to ensure the testamentary wishes of Mr Hassold are upheld following his death.

The odds were stacked against Mr Hassold’s wishes succeeding as he suffered from bouts of schizophrenia for most of his adult life even though he was a prolific writer and an intelligent man in his time.

Mr Hassold had left behind a Will and three other documents (all signed but some handwritten, some calling on the archangel for divine intervention and one only being a copy of the original). All were apparently testamentary in nature and thus the three documents were potential codicils to the Will (‘Purported Codicils’). The order granted however was for letters of administration with the Will annexed and affirmed the validity of the Purported Codicils. The plaintiffs in the non-contentious proceedings were children of Mr Hassold’s deceased brother (his ‘niece and nephew’).

Proving the force and validity of the Will presented many legal issues that had to be carefully considered and presented to the Court. The issues surrounded both the validity and construction of the relevant documents, namely whether:

  • the Will was valid;
  • there was evidence of due execution, as both witnesses could not be found or had otherwise died;
  • the niece and nephew could step in to administer the Will (and his part of the estate which passed on intestacy) as the executors appointed in the Will had either died or had no interest in the position;
  • any of the Purported Codicils were valid;
  • the original of the copied codicil could be located (for the record, it wasn’t, notwithstanding that the Judge was satisfied that there were thorough and diligent searches and enquiries;
  • Mr Hassold had the requisite testamentary capacity at the time of making and signing either his Will or any of the Purported Codicils; and
  • the gift of his house to his niece and nephew came with a binding obligation to keep the house intact or whether or not it was merely a wish and they could do what they needed with it?

To throw another document in the mix, there was a letter in the Public Trustee’s possession, from Mr Hassold dated 1987, in which he referred to his last will and testament being in another document dated March 1981. Had this been the case, it would have expressly or impliedly revoked the Will in consideration in these proceedings. However no such Will was ever found.

His niece and nephew were very fond of Mr Hassold and had a lot to do with him in their childhood years. As many modern tales go however, Mr Hassold came from a blended family situation (as his father had a previous wife and children before marrying Mr Hassold’s mother). Therefore, if the Will was found not to be valid, the estate would be divided equally between not only his niece and nephew, but also the seven other descendants on his father’s side.

The estate was only small with the main asset being the house (which was in disrepair by the time the case was before the Courts). Although the other descendants had been previously advised that they were eligible to share in the estate, they had no interest in advocating for it. This being the case, it was still necessary to take specific steps to ensure that they were aware of their rights as people interested in the estate before the Judge felt comfortable to make a decision that would bind them all.

Due execution

It was necessary to show that the signature on the Will was Mr Hassold’s, by providing comparative writings and affidavit evidence. Although we could not prove the identity of the two witnesses to the Will, Mr Hassold’s niece proved to be an excellent witness when giving oral evidence at trial to attest to her uncle’s handwriting and signature, and this may have given the Judge further confidence to allow the presumption of due execution to apply (as well as relying upon the surrounding context).

It was necessary to provide evidence of the searches we undertook to find who the likely signatories were that attested to witnessing the Will. It was then important to provide information about the likely whereabouts of those signatories now. We established that both signatories were now deceased.

In this case, we were to provide further evidence of Mr Hassold’s writing and signature so that an ample comparison between the two could be conducted in order to satisfy the Judge that Mr Hassold had executed this document with knowledge and intent.

Testamentary capacity

The fact that the Judge was satisfied that there was due execution of the Will, gave rise to a presumption of testamentary capacity. However each of the cases before the courts in this area are very fact heavy, and the Justice turned to several authorities to guide his decision. Through providing the deceased’s medical history and a timeline of his placement in and release out of different medical institutions, and when the Public Trustee was appointed as the administrator of his estate, it was established that Mr Hassold had testamentary capacity as at the date of the Will, and that it was questionable in and around the later dates when he created and signed the Purported Codicils.

His Honour observed that in particular, the Purported Codicils “are devoted in large part to an expression of the deceased’s religious and musical beliefs, concerns and aspirations.  They are written in quite florid language which, to the lay person, would suggest an irrational, perhaps delusional, state of mind.”

His Honour stated that Mr Hassold’s loyal and faithful Evangelical Lutheran religious beliefs which create elaborate parts of his Will, may make no sense to some, but may to others who ‘might be sympathetic with the expressed beliefs and descriptions of religious experiences’. Therefore it was not on this alone that one could undermine his testamentary capacity.

Condition for the Glenside house

It was held that the gift of the house to the niece and nephew on the condition that it was to be kept intact was ‘simply not practical and indeed not possible for the run down Glenside house to be kept in a sufficient condition and maintained to the benefit, indefinitely, for the deceased’s “family”. This can only have been, as the language itself strongly indicates, intended as a desire but not as the imposition of a binding legal obligation.’

Conclusion

Our clients have been put in a position where they can move forward with their lives and all the while reflect the wishes of their beloved uncle. The next steps include applying for letters of administration with Will annexed with the Probate Registry and selling the property so that new development can commence and the space can be given a second life in the neighbourhood, be properly utilised and contribute to yet another story.

For more information, please contact:
Sandy Donaldson

Sandy Donaldson
Director
p.  +61 8 8124 1954
e.  Email me

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this report, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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