The Probate Nightmare: When Multiple Wills Collide

< Back

CM Law's Ultimate 50 List - Probate Problem #14: What if Multiple Wills Exist?

Managing multiple wills can be a complex and often confusing process. When a person has drafted several wills during their lifetime, each new will can introduce complications, leading to potential disputes among beneficiaries and challenges during the probate process. This article explores the legalities, potential issues, and best practices for handling multiple wills to ensure that a deceased person’s final wishes are respected and executed properly.

Why It Might Be a Good Idea to Have Multiple Wills:

In certain circumstances, having multiple wills can be beneficial and even necessary. For instance:

• Asset Segregation: If you own assets in multiple countries or states, separate wills can help manage these assets according to the laws of each jurisdiction, reducing legal complications.
• Specific Bequests: Multiple wills allow for specific bequests to different beneficiaries in different locations, ensuring that local laws and customs are respected.
• Tax Efficiency: In some cases, having multiple wills can help in optimizing tax liabilities by taking advantage of the different tax laws in each jurisdiction.

When Overseas or Interstate Assets Are Involved:

Dealing with assets spread across different jurisdictions adds complexity to the probate process. Here’s how multiple wills can help:

• Jurisdictional Requirements: If the deceased held assets in multiple Australian states or territories, the executor might need to apply for probate in one state and then apply for a ‘reseal’ of that probate in another jurisdiction to manage assets in both places. Similarly, if assets are held in multiple Commonwealth countries, a reseal might be required, but this option isn’t available in non-Commonwealth countries. For example, a will made in the USA cannot simply be resealed in NSW; instead, the executor must appoint a local attorney to apply for ‘letters of administration with the will annexed’ in NSW.
• Legal and Tax Considerations: Different countries have varying laws on succession and tax. For instance, while NSW has not imposed death duties for decades, the USA still applies several taxes on deceased estates. To navigate these differences effectively, having separate wills tailored to each jurisdiction’s laws may be the best approach.
• Convention on International Wills: Another approach is to use an international will, executed according to the 1973 Unidroit Convention, which Australia signed in 2014. These wills are recognized in all signatory countries, including Canada, France, and the USA. However, while an international will can be formally valid across borders, it may not always achieve the desired outcomes due to differing local laws on succession. Therefore, creating multiple wills specific to each jurisdiction remains a preferred strategy for many.

The Legal Complications of Multiple Wills:

Multiple wills can lead to various legal issues, including:

1. Revocation Clauses: New wills typically contain a clause that revokes all previous wills. However, if this clause is absent or unclear, earlier wills may still hold some legal weight.
2. Testamentary Capacity: If multiple wills were created in a short period, questions might arise regarding the testator's mental state, potentially leading to contests over which will is valid.
3. Inconsistencies Between Wills: When wills do not explicitly revoke previous ones, courts may need to resolve conflicts between them, a process known as "implied revocation."
4. Probate Delays: Discrepancies and legal challenges related to multiple wills can significantly delay the probate process, causing additional stress for beneficiaries and executors.

Best Practices for Managing Multiple Wills:

To avoid the pitfalls associated with multiple wills, consider these best practices:

• Consult an Expert: Always work with a qualified lawyer when drafting or updating a will to ensure it includes all necessary clauses, such as a clear revocation statement.
• Keep Wills Updated: Regularly update your will to reflect significant life events, such as marriages, divorces, or the birth of children, but ensure old wills are properly revoked.
• Store Wills Safely: Store the most recent will in a secure location and ensure executors are aware of its whereabouts.
• Consider a Single Will: If possible, consolidate all assets into a single will to minimize confusion and potential legal disputes.

What to Do if Multiple Wills Are Discovered:

If multiple wills are found after a loved one's passing, it is crucial to:

• Review All Wills: Determine which will is the most recent and whether it contains a revocation clause that invalidates previous versions.
• Seek Legal Advice: Consult with a probate lawyer to assess the validity of each will and to navigate any disputes that may arise.
• File for Probate: The executor should file the most recent will for probate. If there are concerns about its validity, the court may need to intervene to determine which will governs the estate.

The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.

Case Study:

In 2022, a complex case in New South Wales (NSW) highlighted the significant challenges that can arise from managing multiple wills. The testator, a wealthy individual with extensive assets across multiple jurisdictions, had drafted three separate wills within a short time span, each will containing different provisions. These wills were intended to manage assets located in NSW, the USA, and a third in France, but none of the wills contained a clear revocation clause that would invalidate the previous ones.

After the testator’s death, the executors faced a daunting task. They had to determine which of the three wills should be submitted for probate. The differing instructions and lack of clear revocation clauses led to disputes among the beneficiaries, who had conflicting interests based on the varying provisions in each will.

The matter was brought before the NSW Supreme Court, where the legal complexities became evident. The court had to decide whether the most recent will, which dealt primarily with the testator’s Australian assets, should prevail, or whether the wills addressing the overseas assets could be considered equally valid, thereby potentially fragmenting the estate.

This legal battle was not only emotionally taxing but also financially draining. The cost of legal fees, court proceedings, and additional administrative expenses quickly escalated. Over the course of 18 months, the estate incurred more than $750,000 in legal costs, significantly reducing the value of the estate available to the beneficiaries. The prolonged nature of the dispute also delayed the distribution of assets, causing financial strain on the beneficiaries who were depending on the inheritance.

In addition to the direct costs, the uncertainty surrounding the validity of the wills led to further complications, such as the imposition of taxes in both NSW and the USA, where the testator’s assets were located. The estate was subject to estate tax in the USA, which could have been minimized if a more coherent estate planning strategy had been in place. The fragmented approach resulted in an additional tax liability of approximately $200,000, further depleting the estate.

Ultimately, the court ruled that the most recent will, which was executed in NSW, should take precedence. However, the financial and emotional toll of the dispute left lasting scars on the family, highlighting the importance of clear and strategic estate planning, especially when multiple jurisdictions are involved.

This case underscores the critical need for well-drafted wills that include explicit revocation clauses and are tailored to the legal requirements of each jurisdiction where assets are held. It also serves as a cautionary tale about the financial consequences of inadequate estate planning, where the costs of litigation and tax liabilities can significantly diminish the intended legacy.

Conclusion:

Dealing with multiple wills can be a challenging and emotional process, but with careful planning and legal guidance, it is possible to ensure that a loved one’s final wishes are honored. By understanding the legal intricacies and taking proactive steps, you can minimize the risk of disputes and ensure a smoother probate process.

FAQs:

1. Can I have more than one will?
   • Yes, but it is generally advisable to have only one valid will at a time to avoid legal complications.

2. What happens if there are multiple wills?
   • The most recent will typically prevails, but if it does not explicitly revoke previous wills, a court may need to resolve any inconsistencies.

3. How can I revoke a previous will?
   • Include a revocation clause in your new will stating that all prior wills are revoked.

Essential Resources

NSW Government – Wills, Probate, and Inheritance
URL: https://www.nsw.gov.au/law-and-justice/wills-probate-and-inheritance
Description: Information on wills, probate, and inheritance laws in NSW, including how to apply for probate and what to do if there is no will.

NSW Supreme Court – Probate
URL: https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_probate/probate.aspx
Description: The official site for the Supreme Court of NSW’s probate registry, offering resources on how to apply for probate, required forms, and fees.

NSW Trustee & Guardian
URL: https://www.tag.nsw.gov.au/wills-and-estates
Description: Provides services related to wills, estates, and managing financial affairs, including acting as an executor, trustee, or administrator for deceased estates.

Australian Government – Moneysmart – Managing Someone Else’s Money
URL: https://moneysmart.gov.au/managing-debt/managing-someone-elses-money
Description: Guidance on managing the finances of someone who has died, including dealing with their estate.

Step by Step Guide – Applying for Probate – Legal Aid NSW
URL: https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/step-by-step-guide-applying-for-probate
Description: A detailed guide from Legal Aid NSW that walks you through the process of applying for probate.

Applying for a Grant of Probate – Supreme Court NSW
URL: https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_probate/sco2_probate_grant/sco2_probate_grant_procedure.aspx
Description: Provides information on the procedures for applying for a grant of probate through the Supreme Court of NSW.

Probate Checklist – Supreme Court NSW
URL: https://www.supremecourt.justice.nsw.gov.au/Documents/Probate%20Checklist.pdf
Description: A checklist provided by the Supreme Court of NSW to ensure all necessary steps and documents are completed for a probate application.

Get a Grant of Probate or Letters of Administration – NSW Government
URL: https://www.nsw.gov.au/topics/wills-and-probate/get-a-grant-of-probate-or-letters-of-administration
Description: Information on how to apply for a grant of probate or letters of administration in NSW.

Online Probate Notices – Supreme Court NSW
URL: https://onlineregistry.lawlink

Tags and Keywords:

can two wills be probated, probate two wills, multiple wills to avoid probate, admitting multiple wills to probate,colonial probate act list of countries,can you have two grant of probates in two countries,multiple wills to avoid probate,admitting multiple wills to probate,probate in multiple states