A Parting Shot

Is there someone you want to exclude from your estate and you want them to know full well why they have been excluded?

In the recent decision In the Estate of Frances Jane O’Grady[1], the deceased made provision for five named grandchildren and included a clause explaining why she had made no provision for a certain grandson. The deceased had decided not to make provision for the grandson as she believed he had stolen a number of valuable items, including jewellery, from her.

The deceased stated in her will:

“I have made no provision for my grandson…as he stole a number of valuable items including jewellery from me and I have not spoken to him since that date”.

Proceedings were commenced by the executors to have the words regarding the alleged theft omitted as it was an embarrassment for the grandson and the words were offensive and defamatory in nature.

The Court agreed the words were offensive and defamatory however they were found to have clear testamentary purpose and were permitted to remain.   The case demonstrates the Court’s reluctance to interfere with the will of the deceased.

The case is a timely reminder that any person named in a will is entitled to see a copy of it and therefore care should be taken in including any explanatory clauses within the will.  Further, once Probate of the will is granted, it becomes a public document.

It is recommended that explanations as to why someone has not been included in a will be contained in a separate statement to avoid these situations from arising.  These sorts of situations are costly and cause delays in the administration of the estate.

[1] In the Estate of Frances Jane O’Grady [2017] SASC 150

Shaun Thistlethwaite

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