It is important for everyone to have a valid Will in place, no matter how insignificant an individual’s assets may be.
Many people decide to draft their own Will or use a template “Will Kit”, thinking that doing so will save them the expense of engaging a solicitor to assist with drafting their Will. However, if a Will is not signed correctly, an Executor appointed under the purported Will document will encounter significant costs and challenges associated with completing the work required for a deceased person’s estate.
What are the formal requirements for a Will?
A valid Will must be:
- in writing;
- signed by the person making the Will (known as the ‘testator’) with the intention of executing a Will;
- signed by the testator in the presence of two (2) witnesses who are present at the same time; and
- signed and attested by the two (2) witnesses in the presence of the testator.
The witnesses to a Will must be physically in the presence of the testator and must:
- be at least eighteen (18) years of age;
- not be a family member of the testator;
- not be a beneficiary named in the Will or a spouse of the beneficiary (an ‘interested witness’); and
- be able to see and attest that the testator signed the Will.
Once a Will is signed, it is important that no marks, alterations, obliterations, holes or tears are made to the Will document. Such matters may indicate that the Will has been altered or revoked and will require explanation.
What happens if a Will is not signed properly?
If a Will is not signed correctly (for example, where the document has not been signed by the testator or where the document has not been witnessed correctly), the document will not be recognised as a Will and the person seeking to act as the Executor will have difficulty:
- being recognised as the authorised person to deal with and be in charge of the deceased person’s estate;
- accessing and collecting the deceased person’s assets (including bank accounts, shares, Superannuation and Life Insurance funds);
- dealing with real property held in the name of the deceased; and
- paying estate debts and distributing the assets to the intended Beneficiaries.
In these circumstances, the Executor appointed under the purported Will document may need to make an Application to the Supreme Court to prove that the document was intended to be the deceased’s last Will. An Application of this kind allows a document to be recognised as a deceased person’s valid Will (or a revocation of a Will) even if the formal requirements for a Will have not been satisfied. This process is often referred to as an ‘Informal Will Application’.
If an Informal Will Application is made, it must be shown that the document was intended by the deceased to be or form part of his or her last Will. A Court may consider evidence relating to:
- the way in which the document (or part of the document) was signed; and
- the testamentary intentions of the deceased (including statements made by the deceased).
To establish the above elements, extensive evidence will need to be collated (for example, notes or statements made by the deceased in relation to their testamentary intentions, statements surrounding the circumstances of the document and how it came into existence and statements from other people who were present when the deceased signed the document).
While there are many circumstances where a Court will recognise a document as a valid Will in the absence of the formal requirements being satisfied, the Executor would need to spend considerable time and effort to collate evidence and complete the required work for such an Application. Further, the estate will also incur significant costs and expenses to make an Application of this kind. In the case of small estates, the costs of such an Application may outweigh the value of the estate assets, resulting in the Executor being left to personally pay the remaining costs, expenses and estate debts.
The time, effort and expense associated with making such an Application can be easily avoided by ensuring that the document complies with the formal requirements for a Will.
Do the formal requirements for a valid Will still need to be adhered to during the Covid-19 Pandemic?
If you sign your Will in circumstances where you are in quarantine or self-isolation arising from the Covid-19 pandemic, the document you sign must still comply with the formal requirements for a valid Will.
The Supreme Court of Queensland has issued a Practice Direction, allowing an Informal Will Application to be made in the following circumstances:
- the document purporting to be a Will (“the Will”) was signed by the testator between 1 March 2020 and 30 September 2020;
- A Solicitor drafted the Will or was a witness to the Will or was a person supervising the signing of the Will;
- the testator intended the document to take immediate effect as their Will, alteration to their Will or a full or partial revocation of their Will;
- the testator signed the Will in the presence of:
- two (2) witnesses being in the presence of the testator by way of video conference (but not physically); or
- one (1) witness being in the presence of the testator by way of video conference (but not physically);
- the witness or witnesses were able to identify the document signed by the testator; and
- the reason why the testator was unable to execute the Will in the physical presence of two witnesses was because of either government enforced or recommended, or self-imposed, isolation or quarantine arising from the COVID 19 pandemic.
This Practice Direction does not mean that the purported Will document will be automatically recognised or guaranteed by the Supreme Court as a valid Will nor does it mean that the formal requirements for a valid Will do not apply to someone who signs their Will in the above circumstances. However, if all of the above matters are fulfilled and provided there is sufficient supporting evidence, the Executor named in the purported Will can make an Informal Will Application which will be treated by the Court in a more simplified manner, without the need to appear in Court personally.
If you have signed a document with the intention of it being your Will (or revoking your existing Will) while you are in quarantine or self-isolation, as soon as you are able to do so, you should take immediate steps to sign your Will so that the document complies with the formal requirements for a valid Will. Taking this step will minimise the risk of unnecessary Court Applications and significant legal costs for the estate.