I was recently at a professional development training day with Business and Estate Planning Specialists, when the question was raised as to how a Will can be validly executed.
Formal Requirements to sign a Will
Section 10 of the Succession Act (Queensland) deals with the formal requirements for the signing of a Will. I will outline these requirements and point to some interesting cases.
- A Will must be in writing – this includes many modes for representing or reproducing words. In The Estate of Slavinski, a will written on the wall of a house was admitted to probate. In Kell v Charmer, a Will written partly in code was admitted to probate;
- A Will must be signed by the will maker or someone else at their direction and in their presence – it is important to show the intention of the will maker to execute the will. It follows that the actual form of the signature is not as important as the intention to execute;
- A Will must be signed in the presence of 2 or more witnesses – this requirement has somewhat been relaxed but it is, in my view, still very important to have 2 witnesses present at all times during the signing. The witnesses however do not need to know that the document they are witnessing is a will;
- The signature must be made or acknowledged by the Will maker – this is usually implicit, but in the case of Goods v Gunstan it was found that a signature that was covered up and not shown to the witnesses could not have been acknowledged;
- The signature must be made with the intention of executing the Will – I will deal with this issue below when discussing Courts dispensing with these formal requirements, but in essence the Will maker must intend that the will be his/her last Will;
- There is no need for the signature to be at the foot of the Will – however it is desirable to continue this practice and also have a proper signing clause.
Similar provisions to this exist in other States of Australia, however it is important to look at the Law in each State for specific issues.
Dispensing with the Formal Requirements
A Court may dispense with the formal requirements for executing a Will in Queensland if the court is satisfied that the person intended the document, or part of it, to form their Will (or an alteration or revocation).
In Re Garris the Court noted that the essential test for a Court is:
- Was there a document embodying the testamentary capacity of the deceased; and
- Was there sufficient evidence to satisfy the Court the deceased intended the document as their Will.
In that case a deceased committed suicide and the court was satisfied, after receiving sworn affidavits from a Solicitor and the applicant, that a handwritten signed document was intended to be a Will.
In The Will of Stephen James Hodge, the Court held that a willkit signed by the deceased (but not witnessed) and found in his truck, was a valid Will, after considering handwriting evidence, and evidence of the actual date of death to ensure the will was made before death. The document also had the words “These are my final wishes”.
Each case is decided on its own facts, and would have cost the Estates considerable amounts of money in legal fees to argue before the Courts. It is therefore very important to ensure that Wills are properly signed.
Please don’t hesitate to contact me if you have any questions in how to property sign a Will or any other estate planning matters.