DIY Will – Disaster – Dealing with property contrary to survivorship rules under joint tenancy

Let’s do the Will ourselves – I hear getting lawyer could cost a lot!

In Re the Will of Fernando Masci [2014] QSC 281 Mr and Ms Masci completed a DIY Will kit that, among other things, provided a life interest to the surviving spouse of the real property that they owned as joint tenants. The words they used were “… I give Fernando Masci my husband is to stay in the house above…until his demise.(death) Elizabeth Masci is to stay in the house above…if Fernando Masci is deceased before her.”

Joint Tenants simply means, that in the event of one of the Parties (tenants) predeceasing the other, then the title of the property transfers to the surviving tenant/s.

The outcome from the words they used in the Will, was that the surviving spouse, Ms Masci, was only to have a life interest in the property which was inconsistent with the continued existence of the joint tenancy and therefore severance of the joint tenancy occurred (to tenants in common), at least from the date of Mr Masci’s death.

Ms Masci only received half the house, with the other half being transferred to Mr Masci’s beneficiaries.

Having a Will that disposes of your property is important. Its your wishes/instructions of who is to get what and how it is to be distributed.
Estate values are increasing and more and more we are seeing family provision applications being brought before the courts.

If your Will is over 5 years old and/or there has been changes in your financial circumstances, then make an appointment to have your will reviewed and if required updated.