Informal Revocation: Can a File Note be enough to revoke a Will? (TAS)

This morning, I read a very interesting case that makes me think of the tasks I do on a daily basis; taking notes of my client’s instructions.

The case of Public Trustee v Bott [2017] TASSC 43 involved a question of whether a File Note could be an informal document containing the deceased’s testamentary intentions to revoke his Will.

The deceased passed away on 7 February 2012 leaving a Will he had made with the Public Trustee on 26 March 1999 appointing the Public Trustee as executor.

In February of 2009, the deceased attended the office of the Public Trustee and spoke with one of the staff and explained the he wanted to cancel his will and “keep it up in the air for the moment” and also made arrangements to collect a Title Deed the Public Trustee held in their custody.  The staff member had responded that she would update their records that the will was “cancelled”. The staff member had no legal training or training in wills and estates.  She did not speak of the interaction with the deceased to any senior personnel or solicitors. She assumed that the file note recording that a client wanted a will cancelled and placed on the file would be sufficient to cancel a Will.

The matter also involved 15 parties (1 Applicant, and 14 Respondents) as the deceased had no other Will and therefore if the Court determined that the File Note revoked the Will, there would be various people entitled on intestacy and if the Court determined that the Will was valid, those named beneficiaries were entitled under the Will.

In order to determine the issue, the Court had to consider whether the File Note could be an revocation of the deceased’s Will as allowed under section  15(1)(c) of the Wills Act 2008 (Tas) which requires a document to be executed in the same way that a Will is required to be executed.  As the File Note was not executed, the question became whether the document was an informal revocation, as may be allowed under section 10 of the Wills Act 2008. As such, the Court had needed to be satisfied of three things:

  • That there is a document;
  • That the document embodied the testamentary intentions of the deceased, in this case to revoke the Will; and
  • The deceased intended that document to constitute a revocation of his Will.

The Court determined that the document did not comprise an informal revocation of the Will.

The Court was not satisfied that the deceased ever saw the File Note, nor did he even know it existed.  Whilst the Public Trustee submitted that there was no doubt that the deceased knew that a document would be created to update the records that the Will was cancelled, the Court could not accept that submission.   The Court pointed out that there was no evidence that the staff member had told the deceased that she would prepare a file note recording the decision.  The Court pointing out, at paragraph 32, that:

At best, the deceased was told on 9 February 2009 that, “update our records that his will is cancelled”.  There is no evidence he was ever told the form that updating of records would take.

 Additionally, the Court noted that the deceased was unlikely to know the difference between what revocation and cancellation were when it came to his Will.

Notwithstanding the Court acknowledged that there is no absolute rule that the document must be seen or read to a person before that person can intend the document to have that effect, the Court said, at paragraph 41:

As to the file note, there is no evidence the deceased knew it had been created or what was in it. At best, as I have said, all he knew was there either had been or would be an updating of the Public Trustee’s records to the effect his will was cancelled. He did not know what form that would take. As I have also already said, the focus must be on the document and not what might otherwise have been the intention of the deceased. Even if I were satisfied that the file note embodied the intention of the deceased to revoke his will, there is no evidence to support a finding beyond reasonable doubt that the deceased intended a document he did not know existed, or what it contained, to constitute a revocation of his will.

The Court found that the File Note was not intended to constitute a revocation of the Will of the deceased and admitted the Will dated 26 March 1999 to probate.

This kind of decision brings to light the importance of seemingly minor things, such a note taking, when it comes to succession law.  Many succession lawyers would think of File Notes as one of the most important, if not THE most important, thing that a succession lawyer and their teams tend to on a daily basis.

As a practitioner in this world, I would think that many of my clients would assume some kind of document would be created to update my records in this kind of way, but again, this is the work I live and breathe, and not everyone understands what kind of records we would take and maintain.

Even with the outcome being what it is, the case itself would have cost money.  The Public Trustee couldn’t, in good conscience, apply to the Court for a Grant of Probate of a Will when there was evidence that the deceased may have intended to revoke it.  So you can entirely understand the need for the matter to be considered and determined by the Court.

It drives home the importance of speaking with someone trained in wills and estates to ensure that your intentions are, in fact, properly addressed and carried out, as this is a great example of how intricate and complex the law is about all things succession law.

The only source of knowledge is experience” –  Albert Einstein

You can read the short case here.

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