Formal requirement of a Will in QLD
The formal requirements for the execution of a Will in Queensland are set out in section 10 of the Succession Act 1981. It must:
- be in writing;
- be signed by the will-maker, or by someone else in the presence and at the direction of the will-maker, in the presence of at least two witnesses, who must be present at the same time; and
- be attested and signed by at least two of the witnesses in the presence of the will-maker.
The witnesses must be over the age of 18 years and see the will-maker’s signature.
But what happens if the document falls short of the formal requirements above?
In 2006, section 18 of the Succession Act 1981 was introduced which empowers the Supreme Court of Queensland to recognize a document or part of a document as being a will if the Court is satisfied that the deceased person intended the document or part of the document to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s Will, even though the document has not complied with the formal requirements above.
Similar, legislation has been enacted in other Australian jurisdictions.
In Queensland, for a document to be recognised as an informal Will by the Supreme Court three conditions must be satisfied:
- There must be the existence of a document. For the purposes of section 18, the definition of “document” includes:
- any paper or other material on which there is writing;
- 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
- any disc, tape or other article, or any material from which sounds, images, messages or writings are capable of being produced or reproduced (with or without the aid of another article or device).
- The document must purport to state the testamentary intentions of the deceased person.
- The document must be intended by the deceased person to form his or her will.
Since 2006, suicide notes, computer files, audio recordings, unsigned handwritten notes and DVD recordings have been declared as wills.
In this day and age, the writer considers that it won’t be long until we see Facebook and Twitter wills being posted into cyberspace for all followers to see.
Have you located an informal will?
If you think you have located an informal Will it is important that you seek appropriate legal advice as soon as possible. For more information about informal Wills, please contact our Wills and Estates Associate on (07) 3025 9000. Our Queensland offices are in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.
Our Wills and Estates Associate
Over the past 2 years, Jenna Hutchinson has worked exclusively in the area of Succession Law as this is where her passion lies.
Jenna’s clients appreciate her “hands-on” approach that she provides at an especially difficult time in their lives when they lost a loved one.
Jenna always strives to do the best she can for her clients to ensure that their wishes are adhered to,