Dangers of a DIY will

A will-like document was found shortly after the death of a 43-year-old lady who tragically took her own life.[1]

The homemade document was two pages long. The second page commenced with the words ‘My Last Will and Testament […]’. She named her brother as her executor, gave money from her bank accounts and her car to her brother, gave her superannuation proceeds to her parents and then directed her brother to discuss with other family members regarding her other items.

The first page of the document appeared to be a letter addressed to her family, written in contemplation of her death. On that page she also described some of her assets – her cheque account, term deposit and a super saver account – and then wrote ‘I give full permission that all of this money [is] to go to my nephew […] and niece […]’.

There were two main issues in this case. Firstly, was the document a valid will, and secondly, whether the wish for her niece and nephew to receive her money was binding.

In relation to the first issue, the reason this question arose was because the will was not made in accordance with law. It was not witnessed. The law does, however, permit wills not prepared in accordance with law to be deemed a valid will in specific circumstances.

Fortunately, the will was signed by the will-maker (“testator”). The fact she has also called it her last will and testament was also relevant.

However, the testator had done a will previously while serving in the navy, and perhaps should have known of the importance of having a will witnessed.

Both the testator’s parents gave evidence that they believed the informal document to be her will and consented to her estate be administered in accordance with its terms. The parents’ views were considered because if the informal will was held not valid then either the testator’s previous will, if valid, or if not valid then the laws of intestacy (the law where there is no valid will) would apply. In both instances, her parents would have been the beneficiaries of her estate.

The Court held that the informal document was a valid will. Despite the fact that the sought after outcome was achieved, the decision had to be determined by application to the Supreme Court, and the applicants were represented by solicitors. Had her will been executed in accordance with law and made by a wills and estates lawyer, it is likely this matter would never have gone to Court, saving the estate great expense and her family further heartache.

In relation to the second issue, the Court held that the statement for her niece and nephew to receive all of her money was not binding; it was just a wish. It merely gave permission but was not a testamentary disposition (i.e. a valid gift under her will). The Court also held that given the low value of the accounts that was wished to the niece and nephew, it was not necessary for the niece and nephew to be legally represented in the matter.

[1] Re: Tinker (d’ced) [2016] QSC 217