Martha Terre- Blanche had witnessed far more injustice in her 82 years than others and sought to remember those who had made those unbearable situations more bearable when she sat down to write her will.
Born in 1924 in Greece, an only child, both her parents were killed in a Nazi concentration camp. Martha fought as a Partisan in the 2nd World War before emigrating to England in 1947, finally settling in Australia in 1959. By 2000 she had been married and divorced twice with no children.
Martha’s surviving relatives were her two first cousins, Sophia and Melita who had both been born in Romania but now lived in New York. Melita, the same age as Martha,had children and grandchildren whilst Sophia who was four years younger had none. Martha knew that if she died without making a will her estate would be intestate and her money would be divided equally between Sophia and Melita. This wasn’t what Martha wanted.
Martha had concerns about the way Melita had financially exploited their younger cousin Sophia and wanted to make sure any money bequeathed to her was safe from Meilita. So Martha, without taking legal advice, wrote her will, signed it without witnesses present,and took it to her local shopping centre to a Justice of the Peace who stamped and signed it.
Martha died in 2008 and when her informal will was found she had pulled no punches when it came to describing her relationship with Melita.
“MELITA PECHERSKAYA is forcing herself upon me like a K.G.B. gangster, SHE DOES NOT TAKE NO FOR AN ANSWER. She and her children are not my respon-sability [sic], I have worked hard all my life for what I got and it does not belong to her. This is an evil person obsessed with ruling the whole world and seeking to possess everybody and all their possessions.
There is no humanity in her and no conscience either. I have here two small investments in trust for SOPHIA, on no account must money be sent to SOPHIA HIRSCH, as this is what they are waiting for. Whatever is invested here must remain here and she can get only the Dividends and not pass on any inheritance to the family of MELITA PECHERSKAYA”.
Martha went on to accuse Melita of stealing money that was sent by Martha in 1967 for both Martha and Sophia and that Melita had left Russia with all Sophia’s money leaving Sophia penniless and alone.
Martha was adamant that none of her money was to pass to Melita and seemed to intend to create a trust whereby Sophia only received the income from the estate and not the capital.
As with all informal wills, there were problems that had arisen with the construction of the will and none of those were concerned with the character assassination of Melita Pecherskaya.
Was this testamentary note which wasn’t witnessed, intended to be Martha’s will or did she die intestate? and more importantly, there was a discrepancy in the wording of the will. Martha wrote:
Although Sophia Hirsch will not be left my house and the bulk of my estate, there must be still an alternative beneficiary and this is [a list of 13 alternative beneficiaries are named]
The validity of a will was somewhat easier to establish. By involving the Justice of Peace, Martha had authenticated her document and this was now considered her will. A letters of administration with the will attached was therefore granted by the court.
The meaning of the will proved more difficult to decide. Sophia, now the Defendant in the case, contested that Martha had made a mistake and this stand alone sentence contradicted other parts of the will which stated Martha decided “long ago” to give all her property and investments to her cousin Sophia Hirsch, clearly saying Ms Hirsch’s name and address.
The Defendants argued that the word ‘not’ was a typographical error and should read ‘now’ whilst the Applicants, NSW Trustee and Guardian, argued that if the will was not rectified then the wording was so ambiguous that those assets would not pass to Sophia.
Both these arguments were rejected by the Judge. Although the wording was ambiguous there was clearly an intention in the will that Sophie was the intended principal beneficiary. Martha’s mistake was that she assumed that the administrator of the will would have the power to ensure that the money left to Sophie would not fall into the hands of Melita. His Honour stated that in the absence of the express gift in the will, the court will carry into effect the intention of Martha which is declared in the rest of the will.
As to the typographical error, His Honour Judge White stated:
“It does not follow that the word “not” in the subject sentence is to be read as “now”. When the will is read as a whole, the scheme that clearly appears is that the deceased wanted Sophia Hirsch to inherit her property but did not want there to be any possibility that the property given to Sophia Hirsch would be passed on by her to Melita Pecherskaya or members of Melita Pecherskaya’s family. She did not intend that Sophia Hirsch would receive an absolute gift. Sophia Hirsch was not to receive the house (or its proceeds of sale) or the investments of the estate if she could give it away to Melita Pecherskaya or members of Melita Pecherskaya’s family. As that was the deceased’s intention, it is not clear that the word “not” in the phrase “although Sophia Hirsch will not be left my house and the bulk of my estate” was a mistake.
His Honour ruled that there was a clear intention from Martha that the administers should hold the estate on trust for Sophia but the terms of the trust are that the funds are to be applied for Sophia’s benefit without the funds coming into her own hands and risk being taken by Melita and her family. A property could be purchased for her use for example or expenses be paid from the trust and Sophia’s interest in the trust could be forfeited if this interest would pass to Melita or her family upon Sophia’s death via a will or by intestacy.
Finally, five years after her death, Martha’s intentions were honoured and her estate was going to protect Sophia without benefiting Melita. The outcome however, came at significant cost to her estate in legal costs. In becoming intent in protecting her younger cousin, Martha created a will that was complex and confusing.
A simple trust created by a legal professional would have been less costly and watertight leaving no room for misinterpretation.
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