For a Will to be valid in Queensland it must:
(a). Be in writing and signed by the testator in the presence of 2 or more witnesses present at the same time;
(b). Have been made when the testator had testamentary capacity;
(c). Not be made as a result of the testator being subject to undue influence; and
(d). Be made by the testator knowing that it is a Will, and knowing the content of the Will.
In this first instalment of our Validity of Wills series we address the formal requirements of making a Will. Section 10 of the Succession Act 1981 (Qld) sets out of the requirements for executing a Will. It requires a Will to be:
-In writing;
-Signed by the testator, or someone else in the presence of and at their direction;
-Signed by the testator in the presence of at least 2 witnesses present at the same time.
The signature of the testator must be made with the intention of executing the Will. If a beneficiary under the Will witnesses the testator’s signature, then the gift will be void except in specific circumstances. The signatures need not be at the foot of the Will, however best practice is that the Will is signed at the bottom of each page and the witnesses are someone other than a beneficiary.
If a document does not satisfy the formal requirements for a Will, then Section 18 of the Succession Act allows for the Supreme Court to dispense with these requirements provided that the court is satisfied that the testator’s intent was that the document incorporates their testamentary wishes.
Some examples of where the court has recognised a document as an informal Will are:
-The testator wrote in pencil on a wall of his home that his estate was to be given to his nieces. He signed the ‘document’ in the presence of his 2 neighbours, one witnessed it, the other could not write.[1]
-A tape-recorded made by the deceased shortly before taking his own life.[2]
- Estate of Slavinskyj [1988] 53 SASR 221
- Re Estate of Carrigan (deceased) [2018] QSC 206
-A DVD made by the deceased before his suicide.[3]
-A printed copy of a computer file created by the deceased.[4] -Messages created and stored by the deceased on his iPhone before his suicide.[5]
-Text message made by the deceased to his brother, that was found on the deceased’s phone but not sent.[6]
-A Will signed by 2 witnesses, but not signed by the testator.[7] -An unsigned, unwitnessed and undated document headed ‘My Will’, handwritten by the deceased about 5 years after she had made a lengthy and detailed Will.[8]
-A document in the nature of a suicide note, which was unsigned and unwitnessed.[9]
Although we may be successful in having a document recognised as an informal Will, this usually involves significant cost and delay which would not have been incurred if the document complied with the formal requirements in the first place.
-A DVD made by the deceased before his suicide.[1]
-A printed copy of a computer file created by the deceased.[2] -Messages created and stored by the deceased on his iPhone before his suicide.[3]
-Text message made by the deceased to his brother, that was found on the deceased’s phone but not sent.[4]
-A Will signed by 2 witnesses, but not signed by the testator.[5] -An unsigned, unwitnessed and undated document headed ‘My Will’, handwritten by the deceased about 5 years after she had made a lengthy and detailed Will.[6]
-A document in the nature of a suicide note, which was unsigned and unwitnessed.[7]
Although we may be successful in having a document recognised as an informal Will, this usually involves significant cost and delay which would not have been incurred if the document complied with the formal requirements in the first place.
- Mellino v Wnuk [203] QSC 336
- Re Will of Trethewey [2002] 4 VR 406
- Re Yu [203] QSC 322
- Re Nichol; Nichol v Nichol [2017] QSC 229
- In the Estate of Williams, deceased [1984] 36 SASR 423
- In the Will and one codicil of Julia Lesley Cleland deceased [2009] QSC 189
- Costa v Public Trustee [2008] NSWCA 223
Are you looking for advice on creating a will? Look no further. MBA Lawyers can help. Call us today on 07 5651 2000.