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What can be a will?

How a person’s estate is dealt with after their death is governed in Queensland by the Succession Act 1981. The estate will pass either under a will or if a will has not been made as an intestacy. The Succession Act sets out how the estate is distributed on the intestacy.

The important parts of what must be done to have a valid will are found in Section 10 of the Succession Act which provides:

 

10 How a will must be executed

(1) This section sets out the way a will must be executed.

(2) A will must be—

(a) in writing; and

(b) signed by—

(i) the testator; or

(ii) someone else, in the presence of and at the direction of the testator.

(3) The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.

(4) At least 2 of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other.

(5) However, none of the witnesses need to know that the document attested and signed is a will.

(6) The signatures need not be at the foot of the will.

(7) The signature of the testator must be made with the intention of executing the will.

(8) The signature of a person, other than the testator, made in the presence of and at the direction of the testator must be made with the intention of executing the will.

(9) A will need not have an attestation clause.

(10) A person who can not see and attest that a testator has signed a document may not act as a witness to a will.

(11) If a testator purports to make an appointment by will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed under this section.

(12) If a power is conferred on a person to make an appointment by will and the appointment must be executed in a particular way or with a particular solemnity, the person may make the appointment by a will that is executed under this section but is not executed in the particular way or with the particular solemnity.

 

However, the Act makes provision for the Court to intervene and ameliorate Section 10. This is found in Section 18 of the Succession Act.

 

18 Court may dispense with execution requirements for will, alteration or revocation

(1) This section applies to a document, or a part of a document, that—

(a) purports to state the testamentary intentions of a deceased person; and

(b) has not been executed under this part.

(2) The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.

(3) In making a decision under subsection (2) , the court may, in addition to the document or part, have regard to—

(a) any evidence relating to the way in which the document or part was executed; and

(b) any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

(4) Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2) .

(5) This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.

 

Importantly, the Acts Interpretation Act has a wide definition of what is a document and this provides:

 

document includes—

(a)any paper or other material on which there is writing; and

(b)any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and

(c)any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).

 

As can be seen this has the potential for many things to be admitted to probate as a will.

In Queensland, in Nichol v Nichol [2017] QSC 220 it was held than an unsent text message was a will. In Tinker (d’ced) [2016] QSC 217, a handwritten informal will executed by the deceased but not witnessed was held to be a will. In Victoria, which has similar legislation an informal will typed on a computer was held to be a final will.

What the Court has to be satisfied of is that: -

(1)    There must be a document

(2)    The document must express or record the testamentary intentions of the deceased

(3)    The document must have been intended by the deceased to be his or her will

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 21 February 18

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