Can a journal entry be a Will?

The Wills, Estates and Succession Act is now more than two years old. One of the major changes under the Act is the new power that the Court has to (in part) declare documents not made in the “ordinary” way as “Wills.”

Reasons for judgement were recently released in the case Re Hadley Estate, in which the deceased had made a Will in 2008.

In 2014, after a health “episode,” the deceased wrote a form of new Will in a journal she kept.

It was not witnessed, and it did not revoke the 2008 Will, but the distribution of the Estate assets was described in the lengthy statement. The Estate’s value was $1.3 million.

The deceased died in early-2015. The Court held that the journal entry was not a Will.

Among the reasons the Court gave was that, when the deceased (after making the journal entry) had consulted a Lawyer to discuss making a new Will, she did not mention the journal entry.

In my opinion, the case shows not only why people should make “proper” Wills but also that, if the prepared material indicates a “fixed, final intention” of the deceased, even a journal entry might be a Will.

The case also suggests that it’s risky to wait when someone wants to make a Will; the deceased had become ill before seeing the Lawyer.

This ad ran in the Richmond News on May 6, 2016.