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Why do I need a will?

Peter Brock was a well known and successful Australian motor racing driver. He passed away while competing in a car rally in Western Australia in September 2006.

Despite Peter’s talent for motor racing, his story is also one that demonstrates how important it is to have a solicitor prepare a valid Will.

Relationships

Peter was married twice - once in the late 60’s and once in the early 70’s.

Peter also had two de facto relationships. The first, with Beverly Brock1, was from the late 70’s until 2005. The second, with Ms Bamford, to whom he became engaged, was from mid 2005 until his passing in September 2006.

Children

Peter had two children with Ms Brock. He was also a ‘de facto step father’ to Ms Brocks’ first child. He did not have children from either of his marriages or his relationship with Ms Bamford.

Wills

In 1984 Peter signed a valid Will, prepared by a solicitor.

In 2003 Peter signed a “do it yourself will kit” document. The document renounced the 1984 Will, appointed executors and gave funeral instructions. Beneficiaries’ details were not completed - instead Peter instructed Ms Brock that she could complete this at the time of his death.

In 2006, Peter brought another “do it yourself will kit” document. He directed Ms Bamford to complete the document, which she did. Although Ms Bamford witnessed the document, Mr Brock never signed it.

Which Will applies?

Depending on which Will applied, different distributions would be made to different beneficiaries. Given the poor drafting of the 2003 document and the unsigned 2006 document, there was uncertainty as to which “Will” was valid.

Unfortunately for those involved, the Supreme Court of Victoria had to determine which document was valid, undoubtedly causing duress, as well as significant expense.

The Court held that the 1984 Will was valid, but was revoked by the 2003 document. The 2006 document was held to be of no effect. Therefore the 2003 document was the “Will”.

Although the 2003 Will was valid and appointed executors, the intestacy provisions of the legislation needed to be relied on, given no beneficiaries were named in the Will.

Result in Queensland

If Peter’s estate was administered in Queensland then:

  • his biological children would have equally received all of his estate;
  • Peter’s de facto step son would not be a beneficiary as step child are not included in this part of the legislation;
  • Ms Brock would not be a beneficiary, as she was not Peter’s de facto spouse at the time of his passing; and
  • Ms Bamford would not be a beneficiary as although she was Peter’s de facto spouse at the time of his passing, the relationship was less than two years old.

It should also be noted that although Ms Brock, Ms Bamford and the de facto step son would not be a beneficiary in the first instance, they may be able to apply to court for a share in the estate, if they could show that inadequate provision was made for their support and maintenance.

The Lessons to learn

The simple way to avoid the issues Peter created by not having a well drafted Will, is to see a solicitor to prepare a well drafted and valid will that reflects your wishes. Peter also shows that “do it yourself will kits” are not a cost effective option.

A valid Will is the most important document you can sign. Aside from having comfort that your estate will be administered in accordance with your wishes, it also saves unnecessary angst and cost in requiring a Court to intervene if there are invalid Wills or no Will.

1 Although Ms Brock adopted Peter’s surname, they were never married

Disclaimer: The information contained in this brochure is general in content and does not comprehensively set out the law in relation to estates. The facts are based on the reported Victoria Supreme Court Decision (Estate of Peter Geoffrey Brock; Chambers v Dowker & Anor; Dowker & Anor v Chambers & Ors [2007] VSC 415 (24 October 2007). Although the information is current at the time of printing it should not be relied upon in substitution for professional legal advice. We strongly recommend that you obtain professional legal advice given no estate is the same. We expressly exclude all liability, including any liability from negligence in relation to this brochure.

Areas of Law

Wills and Estates


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