A recent decision in the Supreme Court of South Australia handed down on the 20^th July 2011, “In the Estate of Brummitt (deceased)”, highlighted to me the importance of properly drafting your Will if you wish to include reasons as to why you have left a person out of your Will.

In the case of the Estate of Brummit, an Application was made in the Supreme Court of South Australia to remove words from a Will of the deceased.  In the Will:

a) The deceased directed that his former wife shall not take any benefit from his estate;

b) He declared that he has “no further obligation to her in any circumstances”;

c) He declared that he had not provided for his former wife’s child as he believed that his former wife “had extra marital affairs” and the child was not his child;

d) Both child and his former wife refused to conduct a paternity DNA test.

For obvious reasons, the former wife did not want these particular words to be included in the Will that was to receive the final approval from the Court as the deceased’s last Will.

The judge refused to remove the reference to “extra marital affairs” and admitted the Will in its signed form. A summary of the legal principals relating to this issue are as follows:

1. In the first instance the Courts will issue Probate in the words of the Will itself;
2. A person making a Will has the right to provide reasons as to why (or why not) the will maker is disposing (or not disposing) of their property;
3. The will maker cannot use the will as a vehicle for defamation, scandal or offence, where those words have no effect upon the Will, or the disposition of property;
4. Generally, the two criteria that need to be met before the Court can exercise its power to omit the words are:
   a) The words cannot be interpreted to have the effect of disposing of assets within the estate; and
   b) The words must be capable of being characterised as scandalous, offensive, defamatory or blasphemous;
5. It is a discretionary power of the Court to determine whether to omit words, on a case by case basis.
6. The power of the Court must be exercised with great care and so generally, in so far as words provide or support a reason for the will maker’s decision, they ought not to be omitted from the Will. It follows that where the words assist a Court interpreting the Will, the Court may decline to omit them.

In this case, the application failed because removing the words “extra marital affairs” would have rendered the rest of that particular clause incomprehensible.  The Court held “in the circumstances of this case this level of interference with a testator’s testamentary affairs would be disproportionate the offensive or scandalous character, if any, of the words used”.

How does this affect your Will?

This case highlights the importance of getting properly qualified advice if you wish to leave people out of your Will. It is very important to express the reasons why people are left out of your Will. My recommendation is to leave a detailed statutory declaration as a separate document to your Will. The benefits of this are:

a) It is a separate document to your Will, meaning that your Will may not meet the same challenges that were faced in this particular case; and

b) It is a sworn document that can be relied upon as evidence (if prepared properly) in the event that there is a dispute over an estate, and the will maker’s reasons.

If you have any queries in relation to Scandalous Words in a Will or any other estate planning, litigation or administration questions, please do not hesitate to contact me.