We have previously discussed why it’s important to have a lawyer draft your Will, rather than doing it yourself. However, there are times when people prepare their own will and they do not execute it correctly. This can be tricky to navigate especially when the will-maker had never previously made a will, or the incomplete will give vastly different instructions than the previous will. Is it possible for an incomplete will to be accepted as the will-maker’s last will?
What does it mean for a Will to be Executed Correctly?
A will has been executed correctly and therefore is compliant and enforceable, if:
- the document is meant to be a will;
- the drafted document is intended to be the will-maker’s final will;
- the will is in writing;
- the will is signed by the will-maker (known as the testator);
- the will has been dated; and
- the will-maker’s signature is witnessed by 2 or more witnesses (who must witness at the same time).
If the will meets all the above dot points, then the will is compliant and the Court will grant the executor probate of the will. Probate will allow the estate to be distributed as per the will’s instructions.
If just one of the above dot points has not been completed, then the will has not been signed correctly. The effect is that the will is considered an informal will.
What is an Informal Will?
An informal will is a document that sets out the will-maker’s instructions but cannot be considered a valid will. This is because it has not met the legislative requirements to make it a formal will.
Your will being considered an informal will, rather than a formal will, presents several issues. The main issue being if your will is considered an informal will, then it will require the Queensland Supreme Court to make a decision to approve the will as the will-maker’s last will. The Court can make a determination on the informal will either with or without a court hearing.
If the Court does not agree to treat the informal will as the will-maker’s last will, then the document is not considered a will. What happens to the estate depends on whether the will-maker previously drafted a formal will. If the will-maker previously drafted a formal will, then that formal will is followed. However, if the will-maker never drafted a formal will, then they are considered to have died intestate.
Regardless of whether the Court makes their decision with or without a hearing, an informal will costs more and delays the time of distribution of the estate. More time must be spent trying to locate people (such as the will’s witnesses or family members) who may have knowledge of how the informal will was drafted. The witnesses and/or family members will all need to prepare an affidavit, which takes time to draft and coordinate. This is vastly different to formal wills where the witnesses do not need to prepare affidavits and court hearings are not required unless there is a dispute on the Will terms.
How does the Court Approve an Informal Will?
If there is an informal will, then the Court has to use its power to determine whether to approve the formal will or not. However, by knowing when a Court will approve an informal will, you may be able to determine whether it is worth submitting the informal will for approval and what documents to prepare before you apply to the Court.
Previous Court decisions have approved an informal will when:
- the will was recorded as a document (note that a document does not have to be in written paper form);
- it asserts what the will-maker wanted to do with their assets after death;
- the point of the document is to only work after the will-maker’s death;
- how did the will-maker handle the document – did they store it with their important documents or did it look like it was stored in a way that it was meant to be destroyed (e.g. crumpled up in a bin labelled for shredding);
- how many of the formal requirements does the will comply with; and
- did the will-maker draft a formal will in the past, where they would and should have known what makes a document a formal will.
As the Court cannot ask the will-maker their intentions after death, the Court relies on the account of events by the:
- people surrounding the will-maker;
- lawyers who drafted the document;
- loved ones who assisted the will-maker in drafting or reviewing the documents; and
- witnesses to the will.
Should all these people prepare and provide affidavits to the Court when the application for probate is submitted, then it may provide clarity to the Court as to the will-maker’s instructions and remove the requirement for a hearing.
What Should you do if you have been Involved in Somebody else’s Will?
If you have acted as a witness, have assisted somebody with drafting a will or have assisted somebody in reviewing their draft will, then you may be required to provide an affidavit about your involvement and what was the will-maker doing. This is not a daunting task. All you need to do is keep a record of the events or what you did and what was happening. That way, if you are called to give an affidavit, you can review your notes and it can trigger a better recollection of events for you.
Ultimately the easiest way to ensure that a will is not considered an informal will is to have a lawyer draft it and act on the draft promptly. Lawyers are aware of the legislation and can draft a compliant will and ensure that you are signing your will correctly.
If you have any questions or require assistance with a Will or Enduring Power of Attorney in Queensland, then please contact the property team at NB Property Law for more information.
Written By:
Kayleigh Swift, Director
NB Property Law
[email protected]
(07) 3876 5111
Kayleigh Swift is a Director of our Property team who showcases her expertise in Commercial and Residential property matters.. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions and property development matters, Kayleigh provides practical advice to ensure smooth property transactions.