In Queensland there are many cases of an informal document being upheld by the Court as a valid Will. This means that if you record your intentions for your estate in some way, it may be considered by the Court to be a Will.
Examples of documents which have been treated as a valid Will include, a hand written note, a video recording, a computer file and in one case, writing on a wall. A document may be considered by the Court to be a Will even if it has not been signed and witnessed.
Text Message Will
A recent example of an informal Will being upheld by the Court as a valid Will is a case where a person created a text message on his mobile phone shortly before he died. The text message was not sent. In this case the Court had to consider whether the unsent text message:
- Reflected his intentions for his estate;
- He had the required capacity at the time he created the message; and
- He intended for the unsent text message to be his Will.
The court determined that the unsent text message was a valid Will, however, it is important to bear in mind that the estate had to cover nearly all of the legal costs involved.
What does this mean for you?
Whilst it is possible to prepare an informal Will which may be considered to be valid, it is important to be aware of the following:
- Risk – If you prepare an informal Will, there is a risk that Will may not be valid. If the Will is not valid you may be considered to have died without a Will. If you die without a Will, your estate is distributed according to predetermined allocations outlined in legislation (intestacy provisions). Intestacy provisions may not be consistent with your wishes.
- Cost – there is often significant legal costs involved in the determination of whether or not an informal Will is valid, because the matter needs to be heard by a Judge. So, although an informal Will may seem like a cost effective way to document your wishes, there may be substantial costs involved to determine if it is valid. It is advisable to seek professional advice to ensure your Will reflects your wishes in a clear and valid document.
- Delay – the case of the text message Will went before the Court approximately a year after the person had died. Having a valid Will can assist with greater efficiency in the administration of your estate. More efficient estate administration may also be more costs effective, thus optimising the benefit to your beneficiaries. While you may not be around, delayed estate administration can have a significant and detrimental impact on your family.
Turn, to Turner Freeman for your estate planning needs
Our team practices exclusively in Wills and Estate Law and are here to guide you through the estate planning process. If you require assistance with your estate planning or need advice regarding an estate related matter, we encourage you to call us on (07) 3025 9000 for an obligation free initial case assessment.