Posted by: Tony Allen
We cannot emphasize enough the importance of having a properly prepared and current Will to ensure that your estate is distributed according to your wishes, however, the absence of a properly prepared will may not always be as catastrophic as you might expect.
In Queensland section 10 of the Succession Act 1981 ["Act"] provides that a will must be in writing, signed by the testator in the presence of 2 or more witnesses present at the same time and signed by at least 2 witnesses in the presence of the testator. Amendments to the Act in 2006 empowers the Court to dispense with the formal execution requirements for a will 'if the court is satisfied that the person intended the document...to form the person's will' and the document 'purports to state the testamentary intentions of a deceased person '.
In a recent case in which our Tony Allen successfully represented the executors of an estate who applied to the Court to validate the deceased's last will which failed to meet the formal execution requirements. In this case, the deceased hand wrote and signed a document which she described as her will and then signed the document in the presence of her sister but there wasn't a second witness as required by the Act. The executors of her estate wanted to ensure that the estate would be distributed in accordance with the deceased's wishes and instructed the firm to bring an Application to the Court to dispense with the strict compliance with the execution requirements. Justice Lyons found that the deceased intended the document to be her will and made an order that the handwritten document was the deceased's will notwithstanding that it had been signed in the presence of only one witness.
To read Justice Lyons' decision, go to http://www.sclqld.org.au/caselaw/QSC/2014/158.
What this case demonstrates is that sometimes an informal will can be validated by the Court, however, the costs of investigating the circumstances of the informal will and of bringing a formal application to the court when combined with the associated delays in the administration of a deceased estate, clearly demonstrate the importance of having a will properly prepared in accordance with the requirements of the Act.
In Queensland section 10 of the Succession Act 1981 ["Act"] provides that a will must be in writing, signed by the testator in the presence of 2 or more witnesses present at the same time and signed by at least 2 witnesses in the presence of the testator. Amendments to the Act in 2006 empowers the Court to dispense with the formal execution requirements for a will 'if the court is satisfied that the person intended the document...to form the person's will' and the document 'purports to state the testamentary intentions of a deceased person '.
In a recent case in which our Tony Allen successfully represented the executors of an estate who applied to the Court to validate the deceased's last will which failed to meet the formal execution requirements. In this case, the deceased hand wrote and signed a document which she described as her will and then signed the document in the presence of her sister but there wasn't a second witness as required by the Act. The executors of her estate wanted to ensure that the estate would be distributed in accordance with the deceased's wishes and instructed the firm to bring an Application to the Court to dispense with the strict compliance with the execution requirements. Justice Lyons found that the deceased intended the document to be her will and made an order that the handwritten document was the deceased's will notwithstanding that it had been signed in the presence of only one witness.
To read Justice Lyons' decision, go to http://www.sclqld.org.au/caselaw/QSC/2014/158.
What this case demonstrates is that sometimes an informal will can be validated by the Court, however, the costs of investigating the circumstances of the informal will and of bringing a formal application to the court when combined with the associated delays in the administration of a deceased estate, clearly demonstrate the importance of having a will properly prepared in accordance with the requirements of the Act.
