Chapter 4. How many wills can one make?
Before entering into a discussion on the number of times a person may make a will, it is incumbent on the writer to give some background to the law in Queensland relating to both wills and intestacy. These laws are substantially contained in the Succession Act 1981 which makes the most commonly used words of testator, beneficiary, probate and codicil, very clear to the non-academic.
A will is a document which clearly sets out the wishes of the person making it (the testator) regarding the distribution of assets upon death. Generally, the final drafting of the document is undertaken by a solicitor. In the case of Tom’s many wills, they were prepared by solicitor Andrew Smyth over a period of 3-4 years.
The Queensland Law Handbook published by Caxton Legal Centre, advises that -
‘There is no prohibition on a mentally ill person making a will, as long as that person has testamentary capacity i.e. the person can understand the will and its effects, the extent of the property involved, and any claims either dependants or other family members might have’.
Between September 1995 and December 1999, the ‘old man’ Tom Jowett made no fewer than twelve wills plus a codicil, of which eleven were drawn up by Smyth – the last or twelfth, is the subject of the book title.
Tom’s wills were changed regularly, sometimes by circumstances such as the passing of his wife, on other occasions simply because he could not make up his mind, or he had a difference of opinion with a previously named beneficiary. Tom had a right to change his mind and make as many wills as he wished, but a pattern developed which to the average person would have indicated he had a real problem in deciding who should benefit from his estate.
After Tom and his second wife Sheila signed wills on the 18th. October 1995, they were back in Smyth’s office just eight days later to sign new ones. Following his wife’s death, Tom signed a further nine between June 1996 and December 1998, with some of them being executed just one to two months after the previous signing.
It would seem that Smyth had no problem with the rapidity of changes made, as on each occasion ‘billing time’ was being charged, and after all, most law students learn very early in their careers, that if you want to become a partner in a law firm, you must build up ‘billing hours’ . Most of the consultations took place in the office of Smyth, but on occasions it seems he pursued issues raised in Tom’s own home, or at the very least, took instructions over the phone.
According to Smyth’s typed interpretation of his handwritten notes served in compliance with the Uniform Civil Procedure Rules, and contained in an amended list of documents to Whiteside’s solicitor, wills prepared for Tom as testator were signed only after prolonged discussions. This is evidenced by the following comments relating to each document.
18th. October 1995 - house transfer documents signed, valuation discussed, Smyth discusses
trustee fees, Tom happy to pay extra, intestacy mentioned.
26th. October 1995 - Tom and Sheila want their wills changed, remove reference to
14th. June 1996 - Sheila deceased, beneficiaries named for 46% of estate, Whiteside’s to
receive 10% being the largest allocation - balance to children’s charities
June 28 Tom’s friends have disappeared – wants to strike people
out of the will – removes some existing beneficiaries
August 6 Balance of estate to go to ‘S.J.’
8th. August 1996 - ‘S.J’. to receive contents of house plus car as well as residual -
2nd. October 1996 - Tom decides he doesn’t want ‘S.J’. as a beneficiary after all – Smyth
suggests charities for Tom to consider – 18% only of beneficiaries
October 24 Tom knows he has a ‘swinging’ amount to allocate
29th. November 1996 - Beneficiary percentages changed –
21st .January 1997- Tom changes will – 79% not allocated – wants to think about who to
give the balance to
July 18 Tom wants to make new will
July 28 Tom still to decide what to do – 13% only allocated
August 21 Tom hasn’t yet made up his mind
August 22 More changes.
28th. August 1997- Will signed
September 1 Tom explains his medical condition
September 5 General discussion with Smyth over jewelry
October 8 Tom not sure about Blue Nurses
October 16 Tom wants to change his will again
October 21 Funeral arrangements discussed – nil to Blue Nurses
Nov. 14 Tom still trying to make up his mind – more changes,
21st. November 1997 Tom satisfied with changes –‘will change again if people
10th. March 1998 More changes -
15th. December 1998 Final changes made –
This is an extraordinary number of wills executed over a short period of time, and would normally have raised serious questions as to the competency of the testator to fully comprehend the consequences of his actions.
In making a will, the question often arises as to how often the person making one should review it. Unless there is changing or extenuating circumstances, it is commonly accepted that they should be reviewed at least every three years. It is much like a doctor suggesting to his patient that he or she should have check ups every six months. This was not a problem in Tom’s case, as it seems he regularly changed his wills at considerable financial cost to him.
Where wills are prepared by an officer of the Public Trustee of Queensland, it is generally accepted that the cost of preparation will be free of charge, but with a solicitor fees are charged upfront. Additional fees are claimed if appointed to act as Executor and Trustee of an estate.
The above set of circumstances where wills are changed with monotonous regularity is not the norm, but a person has the right to change their will repeatedly if they so desire, provided (for it to be valid) the person is of sound mind and competent at the time.