Informal Wills in Queensland

Informal Wills in Queensland

In an ideal world, we would all be up to date with our planning, including our estate planning. Unfortunately, studies show that a large proportion of Australian adults do not have a current, up-to-date will. What happens when someone dies without a will, but with another document that may purport to be a will but that doesn’t meet the formal requirements? In 2006 changes were introduced to the Succession Act 1981 (Qld) (the Act) which authorised the Queensland Supreme Court to recognise (in limited circumstances) these ‘informal wills’ in Queensland.

Ballantyne Law Group were recently successful with an application to the Queensland Supreme Court for recognition of an informal will (in this case, parts of a suicide note).

What are the formal requirements for executing a will in Queensland?

Section 10 of the Act sets out the formal requirements for executing a will in Queensland.

To be validly executed, a will must be:

• in writing;
• signed by the testator (the will maker) or someone else in the presence of and at the testator’s direction.

The signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and at least two of the witness must attest and sign the will in the testator’s presence.

The witnesses must be over the age of 18 years and must also be able to see the will maker’s signature.

If the will makes a gift to a person who then attests the execution of the will, those gifts may fail.

What happens if the formal requirements are not complied with?

Where a document purports to state the testamentary intention of a deceased person, section 18  of the Act authorises the Supreme Court of Queensland to dispense with the formal execution requirements for a will (or for an alteration or revocation of the will) of that document provided that the Court is satisfied that the person who made the document intended that the document (or part of the document) to form the person’s will or a full or partial revocation of the person’s will.

There are three conditions necessary for the court to dispense the formal execution requirements:

• was there a document;
• did the document purport to embody the testamentary intentions of the relevant Deceased; and
• did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will.

(Lindsay v McGrath [2016] 2 Qd R 160, Re Nichol; Nichol v Nichol & Anor [2017] QSC 220).

What kinds of documents has the Court dispensed with the formal execution requirements?

Since its introduction in 2006, using section 18, the Court has recognised a range of informal wills, from formal documents that have had straightforward procedural defects under section 10, to less clear matters.

What can constitute a document is very broad, and can range from handwritten, informal notes to video recordings or electronic documents.

Matters that have been considered by the Court have included:

• In Re Nichol; Nichol v Nichol & Anor [2017] QSC 220, the Court accepted that an unsent text message written immediately prior to committing suicide formed a will;
• In Mahlo v Hehir [2011] QSC 243, the Court found that an electronic document on a computer was not a valid will, as the Court was not satisfied that the deceased intended that the electronic document should form her will, principally on the basis that, having recently signed (and had witnessed) a will, the deceased knew that she needed to do more than type or modify a document on her computer to form a will; and
• In Mellino v Wnuk & Ors [2013] QSC 336, the Court was satisfied that a video recording on a DVD satisfied the requirements of section 18.

As outlined above, Ballanytne Law Group have recently been successful with an application pursuant to section 18 in relation to parts of a suicide note.

Naturally, the ideal would be for everyone to have a properly executed formal will.  In circumstances where someone has died leaving a document that may purport to demonstrate a deceased person’s testamentary intentions, you should obtain appropriate legal advice in relation to that document.

If you would like to discuss this matter with any of our experience estate planning team, please contact us on (07) 5606 7332

Contact our QLD Will disputes team if you have an Estate Litigation enquiry.