Homemade Wills can be very costly

Posted by: Kylie Shaw

Homemade Wills can be very costly to your loved ones and may result in your wishes and directions not being followed. Increasingly, we are seeing applications to the Court in relation to Wills that do not comply with the necessary requirements to be a valid Will [known as an informal Will].

Recently, the Queensland Court of Appeal considered an application for approval of an informal Will for the first time, in Lindsay v McGrath [2015] QCA 206.

In that decision, the Queensland Court of Appeal determined that an informal document which stated “… for the purpose of making the Will of Nora Priscilla Lindsay” was not a valid Will.

As a result, the Will could not take effect and the Nora Lindsay’s wishes in the document could not be carried out.

In this case, Nora Pricilla Lindsay had two children, her son, Geoffrey Lindsay and her daughter, Heather McGrath.

Nora decided to make a document herself which looked very much like a Will leaving the bulk of her estate to her son, Geoffrey. She specifically provided for why her daughter, Heather should not receive anything from her estate and provided the reasons why she was disinheriting her.

Nora Pricilla Lindsay died on 16 October 2012 and two court cases later, the Court held that the document was not a Will.

At first instance, the primary judge found that whilst the handwritten document contained a bequest of Nora’s property to her son, Geoffrey, that statement in itself was insufficient to satisfy the requirements of a valid Will.  The primary judge formed the view that the document was to be "for the purpose of making the Will" rather than the Will itself.

The issues with the document were highlighted as follows:

1. First, the document contained the words "for the purpose of making her Will";


2. The handwritten document did not accord with Nora's conversation that she had with her son Geoffrey in 2008 that she was leaving "everything" to him. There were specific exceptions attached to the document but they had been torn off from the document;


3. There were alterations contained in the document;


4. The document did not deal with all of Nora's estate;


5. Nora wrote her name but was not in the form of a signature; and


6. The document was not witnessed.

On Appeal, the court found that the evidence placed before the primary judge, at best, established that it was Nora’s intention that her son, Geoffrey receive the benefit of her estate with her daughter Heather to receive nothing. However, the evidence did not establish, that the handwritten document, in that form, was intended by Nora to form her last Will. The Appeal was dismissed.

As Nora had revoked her previous Will, her children shared equally in her estate pursuant to the laws of intestacy.

Although preparing an informal Will might sound like a cost effective way to prepare your Will, there is no guarantee the document will be valid. Making an application to the court to validate a will which does not comply with formal legislative requirements is very costly and far exceeds the costs of having a Will prepared in accordance with the legislative requirements.