A 2021 NSW Supreme Court decision offers a cautionary tale about the importance of executing your will, and a reminder that good intentions don't carry legal weight without a signature.

The story
Paula Bate spent over 30 years devoted to the Genesian Theatre Company, a well-known Sydney theatre group. She held life membership, and in her final years made clear to friends, family and her solicitor that she wanted to leave her entire estate to the organisation she loved.

Her solicitor drafted the will. She reviewed it, said she was happy with it, and asked a friend to put it in a safe. She died on 14 February 2008, without ever signing it.

Because an unsigned will has no legal force, Paula died intestate. That means the law stepped in to decide what happened to her estate, not her wishes. With no surviving relatives identified, her estate passed to the Crown as bona vacantia (ownerless property).

The Genesian Theatre then spent years attempting to recover the funds, eventually having to take the matter to court simply to establish that an incorporated organisation like itself could even be eligible to receive money under the relevant intestacy provisions. The proceedings weren't resolved until 2021, over 13 years after Paula's death.

The legal question
The Court ultimately found in the Theatre's favour, declaring that the word "persons" in the intestacy legislation includes bodies corporate like incorporated associations. So, the Crown could pay out the estate to the Genesian Theatre.

But here is the crucial point: the Crown's power to do this is entirely discretionary. The legislation says the Crown may provide for persons the deceased might reasonably have been expected to benefit, not that it must. The Theatre had no right to the money. It had to litigate for the right to even ask.

What this means for you
If you want to leave part or all your estate to a charity, community organisation, sporting club or any incorporated body, the only reliable way to do that is through a properly executed will.

A drafted will sitting unsigned in a safe does nothing. Under NSW law, a will must be signed by the testator in the presence of two witnesses, both of whom must also sign and not be beneficiaries. Without that, it has no legal effect, no matter how clearly your wishes were communicated to the people around you.

Paula's estate reached its intended destination eventually, but only after years of uncertainty, legal proceedings and significant cost. That outcome was not guaranteed. A different set of facts, or a less sympathetic application of Crown discretion, could easily have produced a different result.

If your will is sitting in draft, or if your circumstances have changed since you last reviewed your estate planning, now is the time to act.

Don't leave your estate to chance. Our team can help you put a valid, properly executed will in place, giving you confidence that your wishes will be carried out. Contact us today to arrange an appointment.