In Queensland, for a will to meet the formal requirements of a valid will, the will must be in writing, signed by the will maker and the will maker’s signature must be witnessed by at least two witnesses.
The Court has the power to declare a document that doesn’t meet the formal requirements to be a valid will. There have been various cases where documents such as will instructions, post-it notes, text messages, electronic documents and video recordings have been declared by the Court to be a will.
Although these cases were successful, the outcome of cases of this kind may differ depending on the evidence. The Court must be satisfied that the person indented the ‘document’ to form their will.
When a will is not made in accordance with the formal requirements, an application will need to be made to the Court for the ‘will’ to be found valid. This will involve significant cost on behalf of the estate and delay in the administration of the estate. It may also involve potential disputes between family members about the effect of that informal document.
While it might take a few hours and involve a cost to properly draft your will, the costs of not doing it right are significant. It can take months to prepare an application to court to have an informal document upheld to put your wishes into effect. The financial costs will easily be tens of thousands of dollars. These costs and delays add to the emotional turmoil of losing a loved one.
Wills can take a variety of forms. If you have lost a loved one, proper searches should be undertaken of a deceased person’s home, vehicles, storage, computer, mobile telephone and other devices for documents of a testamentary nature.
We have experience with applications to the Court when a will does not meet the formal requirements. If you need any legal assistance regarding wills and estates, you can book in an obligation-free chat or call us on 07 3174 5730.
