We, at Drayton Sher Lawyers, are often amazed to find out how many people out there do not have Wills in place or who have outdated wills that they have never bothered to redo. It’s bizarre because it is not a particularly difficult thing to get done. We can only guess it’s because people don’t like to face death. But, perhaps contrary to what you believe, you will die one day. You’ve heard it before: There are only 2 certainties – death and taxes. (And by the way, our tax department welcomes your calls also).
As a decision handed down by the NSW Court of Appeal on 15 October 2013 shows, it is better to get your Will sorted out because you can’t come back afterwards and tell everyone what you really intended.
Sion v NSW Trustee & Guardian involves the late Mr and Mrs Chamita. They married in 1954. They had no children. They made Wills in 1966, in similar terms, leaving their property to each other and if the other should predecease then to an aunt and cousins in New York.
Mr Chamita made a new Will in 2001 in which he left the income of his estate to Mrs Chamita for life and after her death for the estate to go to 9 nieces and nephews of his wife (his wife’s sibling’s children).
Mr Chamita died in 2005 and Mrs Chamita died in 2009. So based on the above, the New York cousins were to inherit, as were the 9 nieces and nephews.
It emerged in evidence in Court, at the first hearing in front of Judge Bergin, that the 1966 Wills had been made as they had as both Mr and Mrs Chamita felt an obligation to his New York aunt as she had protected Mt Chamita from the Nazis in World War II. Mr Chamita, however, changed his Will in 2001 as his aunt had predeceased him. Unfortunately Mrs Chamita could not likewise change her Will in 2001 as by this stage she was suffering from senile dementia.
The Chamitas had had over 30 years to change their Wills but had not done so, with the result that Mrs Chamita’s final wishes may not have been carried out.
But the case get’s a little bit more complicated and a bit stranger still. The Appellants are 3 of the nieces and nephews of Mrs Chamita who inherited in terms of Mr Chamita’s will. They claimed that during 1997 Mr and Mrs Chamita had entered into an agreement with them (or represented to them) that if the three of them looked after Mr and Mrs Chamita, they would leave their entire estates to them. The Appellants set out detailed evidence of the conversations that lead to this “agreement”.
Judge Bergin found that the Appellants had not succeeded in proving the alleged agreement and questioned also if Mrs Chamita could, in fact, have made such agreement as she had senile dementia.
In the Appeal, Judges Basten, Barrett and Emmett agreed with Judge Bergin. In addition to the grounds raised by Judge Bergin for her decision, the Judges of Appeal also referred to the authority of Bovaird v Frost  NSWSC 337 where the Court found that, as a matter of human experience, when family members make promises to each other it is unlikely that they intend these to be legally binding. The law presumes that family members do not intend to contract, on the formal sense, when making arrangements amongst themselves.
So the Appeal failed and the poor Appellants could only get their share along with their 6 co-beneficiaries.
The question that remains is why Mr and Mrs Chamita did not change their Wills to reflect the alleged agreement between them and the Appellants? There are only 2 possible answers: firstly, they never got round to it; or secondly, that there was no such agreement with the Appellants.
This case illustrated how not updating Wills regularly can have an impact on those left behind. A well drafted and accurate Will should be made by everyone wanting to be clear about what happens with their property after death.