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.

                                    Wills signed

 

26th. October    1995 -   Tom and Sheila want their wills changed, remove reference to

                                     trusteeship

                                    Wills signed

                               

 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

                                    Will signed

                                     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 -

                                     Will signed

                            

 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

                                      named                                                      

                                      Will signed

                                      October 24   Tom knows he has a ‘swinging’ amount to allocate

 

29th. November 1996 -  Beneficiary percentages changed –

                                     Will signed

 

21st .January     1997-   Tom changes will – 79% not allocated – wants to think about who to

                                      give the balance to

                                      Will signed

                                      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    

                                                           upset him’

                                     Will signed

 

10th. March        1998   More changes -

                                     Will signed

 

15th. December   1998   Final changes made –

                                     Will signed

 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.

 

Chapter 5

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