A Northern Territory Supreme Court decision handed down on Wednesday provides a wistful postscript to the life of a great eccentric Territory character as well as a salutary warning to aspiring DIY will drafters.
Andrew McMillan was the self-styled Hunter S Thompson of the Northern Territory. A well-known author, journalist and erstwhile musician, his books included Strict Rules (which dealt with the 1986 Warumpi Band/Midnight Oil tour), Death in Dili, Catalina Dreaming and the award-winning An Intruder’s Guide to East Arnhem Land.
McMillan was also the leader of a journalist/musicians’ band called The Fourth Estate which played fairly frequently at Darwin’s indy music venue the Happy Yess. McMillan’s friends, well-known and equally eccentric Darwin artist Chips Mackinolty and then ABC News editor Murray McLaughlin, mused about this in an interview on ABC radio shortly after his death in January 2012 after a long battle with bowel cancer:
CHIPS MACKINOLTY, FRIEND: He ran it as autocratically as Rupert Murdoch and would sack people from the band for not coming to rehearsals or singing the wrong song and so on, so for a while there it looked like we’d have more ex-members of the Fourth Estate than there are ex-political reporters in the Australian.
MURRAY McLAUGHLIN: In the last few months of his life, McMillan created and fronted another band – The Rattling Mudguards – and a CD is in production. Visiting celebrity musicians like Don Walker of Cold Chisel and Rob Hirst from Midnight Oil weighed in when they were in town.
Mackinolty also reminisced in less than reverential terms about his friend’s personal habits:
CHIPS MACKINOLTY, FRIEND: He was like a, some sort of marsupial rat I think, sort of lurking underneath houses which is where he preferred to live and work and it’s where he wrote all his books. The rent was low, as was the roof and I just think it suited him – he was surrounded by his books, surrounded by his music.
In early 2011, about a year before his death, McMillan got his mate Mackinolty to draft his last will and testament. Mackinolty is an excellent and creative artist but he isn’t a lawyer, although his father was an outstanding one so maybe that’s why McMillan asked Chips to draw his will. In fact, Chips’ dad, whose personal presentation was almost as cadaverous and dissolute as his son’s, was the Dean of the University of Sydney Law School when I studied there in the 1970s.
A valid will?
Unfortunately Chips lacked his father’s sense of legal precision; his gifts are more of a free-form expressive nature. The document he drafted expressed McMillan’s testamentary intentions clearly enough, but he paid little or no attention to the formal legal requirements for a valid will. It lacked a formal attestation clause, which isn’t legally required as such but highlights various witnessing formalities that ARE legal requirements. A typical attestation clause would read something like this: “SIGNED by the Testator in the presence of us both being present at the same time and attested by us in the presence of him and of each other.”
The formal legal requirements for a valid will are set out in section 8 of the Wills Act:
(1) A will is not valid unless:
(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator;
(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and
(c) at least 2 of those witnesses attest and sign the will in the presence of the testator.
(2) It is not necessary for the 2 witnesses referred to in subsection (1)(c) to attest and sign the will in the presence of each other.
(3) The signature of the testator:
(a) must be made with the intention of executing the will; and
(b) is not required to be made at the foot of the will.
(4) It is not necessary for a will to have an attestation clause.
Fortunately, Chips managed to get some things right probably more by good luck than good management. McMillan had nominated Chips as his executor, along with ABC News editor Murray McLaughlin and former Warumpi Band manager Denise Officer. All three were present as witnesses when McMillan signed his will on 9 July 2011. Unfortunately they didn’t actually sign the document then as witnesses, presumably because no one realised that this was required. Nevertheless, someone soon realised that it was a problem and set out to remedy the deficiency. As Justice Hiley recounts in his reasons for decision:
Both applicants [McLaughlin and Officer; Chips “renounced probate” (declined appointment as executor)] appeared and spoke at the hearing. Ms Officer stated, and I accept, that the Will was prepared by Mr Mackinolty, and that she, Mr Mackinolty and Mr McLaughlin were all present and saw the testator sign the Will on 9 July 2011. She also said that someone then realised that the witnesses had to sign the document as well, as a result of which the second page was drawn up and presented to the applicants to sign, which they did on 11 July 2011. Mr McLaughlin could not positively remember having witnessed the testator’s signature on 9 July, but saw no reason to disagree with Ms Officer’s recollections about that.
As it turned out, that was enough to satisfy Justice Hiley. There was no evidence that McMillan was present (as section 8 requires) when the two executors signed the will as witnesses on 11 July, but His Honour was generously prepared to assume that he probably was. More importantly, Justice Hiley was convinced that everything was above board and that the will genuinely represented McMillan’s testamentary intentions and was therefore prepared to exercise his discretion under section 10. Accordingly, he made an order pursuant to section 17 of the Administration and Probate Act authorising the Registrar to issue probate of the will to the appointed executors Murray McLaughlin and Denise Officer. Section 10(2) of the Wills Act provides:
If the Court is satisfied that a deceased person intended a document or part of a document that purports to embody the testamentary intentions of the deceased person (but which is not executed in the manner required by this Act) to constitute his or her will or an alteration of his or her will or to revoke his or her will, the document or part of the document constitutes the will of the deceased person or an alteration of the will or revokes the will, as the case requires.
A valid gift?
However, that wasn’t the only problem with Chips’ rather slapdash arrangements for signing and witnessing of the will. Murray and Denise were not only executors and witnesses, they were also beneficiaries under the will. Andrew McMillan had made provision in the will for various specific bequests to his friends including Murray and Denise. The problem with that as far as Murray and Denise were concerned is that section 12 of the Wills Act provides, subject to three provisos, that “if a beneficial disposition is given or made by will to a person who is a witness to the will, the disposition is void to the extent that it concerns the person or a person claiming under him or her”. Again fortunately, Justice Hiley was satisfied that the third proviso applied, namely that “the testator knew and approved of the disposition; and the disposition was given or made freely and voluntarily by the testator.”
There couldn’t really be any doubt about the last proposition, because Andrew had actually physically given their bequests to Murray and Denise before he died. Moreover, that meant the apparent problem with section 12 wasn’t really a problem at all, because the gifts could not form part of the deceased estate.
What does it all mean?
The takeaway message from this Territory Testamentary Tale is a simple one. Making a valid will isn’t as straightforward as it might look. You certainly shouldn’t draw it up yourself nor should you get a non-lawyer friend to do so, even if the friend is a senior government arts apparatchik (as Chips was at the time) whose father was an eminent academic lawyer. Using one of those DIY wills kits that you can buy at a newsagent is probably okay in a straightforward situation, as long as you are capable of reading and carefully following the instructions.
However, by far your best bet is to get a competent, experienced lawyer to handle it for you. The costs of doing so are very modest compared with the very heavy expense you could incur if things go wrong. Murray and Denise represented themselves before the Supreme Court, but many people wouldn’t be capable or confident enough to do so. Moreover, there was no dispute in this case. Everyone was happy that the will really did represent Andrew McMillan’s testamentary intentions, and no one was interested in challenging it. If there had been feuding family members in the picture, as is often the case with a deceased estate, the story would have been entirely different. Murray and Denise would have had no real choice but to retain lawyers at great expense, and the litigation may well have dragged on for years.
The other reason why it’s a good idea to get an experienced lawyer to handle your will is that there are numerous other issues that you should seriously consider when you’re turning your mind to the legal consequences of mortality. They are covered elsewhere on the Parish McCulloch website.