A Joint Will Is Not Ideal

Wills and Estates

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DATE PUBLISHED: December 8, 2015

The recent decision of the Queensland Court of Appeal in Masci v Masci & Anor[1] concerned the interpretation of a joint will of Fernando and Elizabeth Masci. Mr and Mrs Masci had combined their wills into one document. Whilst this is rare, it is something that we do see. It is not ideal.

The will:

  1. revoked all previous wills;
  2. appointed Elizabeth’s daughter, Susan and Fernando’s son, Graham as joint executors; and
  3. gave the survivor of them the right to remain in the house they currently resided in and handle ‘all monies’ until their death; after which fifty percent was to go to Elizabeth’s children and fifty percent to Fernando’s children.

Mr and Mrs Masci did not have any children together, they were survived by children of their respective first marriages. After Fernando died, Elizabeth took steps to sell a property she had owned as joint tenants with Fernando.

Graham brought proceedings to prevent this sale arguing the will was a mutual will and that the effect of the joint will was that the joint tenancy had been severed. Graham was trying to protect the interests which, he argued, ought to have flowed to Fernando’s family after Elizabeth died.


At trial, the judge found that the will did sever the joint tenancy and established a life interest in the estate property. Sufficient evidence of the couple’s intention to, in effect, create a mutual will was found.

Her Honour also found that it was appropriate that Graham should be executor and trustee of the will as at the time of the application the property had been sold by Elizabeth. Graham was more likely to act independently.


Elizabeth appealed that decision. She argued:

  1. the judge erred in finding it was a mutual will;
  2. the judge erred in finding that the joint tenancy had been severed;
  3. the will as not sufficiently certain to have effect; and
  4. the judge erred in removing Susan as executor.

In hearing the appeal, the court noted the significance of the fact that Elizabeth and Fernando had “thought it necessary to provide for rights in relation to the residential property after the death of the first of them to die”. The court found that it was inconsistent with Elizabeth’s position, to have outlined this intention in the will, if indeed it was to pass to the survivor absolutely. What was given by the will was not absolute ownership, but a life interest in the estate.

Regarding the mutual will argument, the court highlighted the “heavy burden of proof” necessary to establish a mutual will from Birmingham v Renfrew. It was argued that there was insufficient evidence to make such a finding. However, the court upheld the reasoning of the trial judge in finding that:

“the fact that the will is a joint will, and the substance of the provisions of the will – to benefit the couple’s respective families equally, I am prepared to imply a term that this joint Will was not to be revoked by either Fernando or Elizabeth Masci without giving notice to the other. The consequence is that Fernando having died without revoking the Will, Mrs Elizabeth Masci’s conscience is bound.”

The Court of Appeal agreed that the joint tenancy between Elizabeth and Fernando had been severed by their intention in their joint will. The will severed the joint tenancy by conferring on the survivor a life interest not absolute ownership.

Elizabeth’s appeal failed.

This case, like many, highlights the need for thorough estate planning. It can be greatly beneficial to seek professional input into drafting your will. Getting it right now can save much heartache and money later on.

If you would like assistance with estate planning or other estate issues, please contact the McInnes Wilson Lawyers Estate Law Team.

[1] [2015] QCA 245

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