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‘Sign’ your life away, correctly!

Warren Wackerling and Jodie Burnett – 21 July 2015

Introduction

 

The Supreme Court recently highlighted the importance of correctly preparing and signing a Will, or any amendment to a Will (codicil).  The Court had to consider whether a Will made in 2012 was revoked, or alternatively altered, by a handwritten document created in 2013 which was signed but not correctly witnessed in accordance with the Succession Act 1981 (Qld).

 

Facts

An elderly man had a will in 2012 using a ‘Prepare-Your-Own Legal Will Pack’. The 2012 Will was propertly signed and witnessed according to law, distributing his estate upon death to his daughter (by Maori custom), his biological daughter and four other relatives, but only  a nominal gift was made to his biological daughter.

 

The man was admitted to hospital in August 2013 with failing health. Two days prior to his death in November 2013, the man purportedly signed a handwritten document addressed ‘To whom it may concern’ stating to whom he wished to leave various possessions after his death.  The hand written document was argued by his biological daughter as the last Will of her father’s, which differed significantly to the 2012 Will in the share of the estate.

 

The handwritten document was signed in three places by the man but his signatures were markedly different from his 2012 Will, furthermore the document was not executed properly as no witness signatures were on the document.  The Court had to consider evidence relating to the way in which the document was executed as well as evidence of the man’s testamentary intentions and capacity. 

 

Findings

 

The Court was not satisfied that the man had been in a state to understand the nature and effect of the handwritten document. Furthermore there was no evidence that the man, by words or conduct, demonstrated that the contents of the handwritten document signed by him should operate as his Will. 

 

As his biological daughter could not establish that the handwritten document formed the last Will of the man, or formed an alteration or partial revocation of the 2012 Will, the Court found that the 2012 Will is the valid last Will of the Deceased.

 

What do I need to be careful about?

 

This decision emphasises the importance of having a validly executed Will. Whether it is a ‘Prepare-Your-Own Legal Will Pack’ or prepared by a solicitor, it is important to be aware of the strict requriements for making a valid Will including:

 

·         in writing and signed by the will maker, or someone else in the presence of and at the direction of the testator;

·         signed in the presence of 2 or more witnesses; and

·         ‘attested’ to and signed by the witnesses.

This case also demonstrates that in the event that you wish to alter your will it is vital that these intentions are made clear and any amendment is singed correctly.

Download the decision here. 

This article is for general information only and should not be relied upon as a substitute for specific legal advice.