Wills - the importance of getting it right
You may think it is just as easy (and cheaper) for you to prepare a Will yourself, but did you know there are strict legislative requirements that must be followed for a Will to be considered valid and binding? If these legislative requirements are not followed, your Will may very well be considered invalid by the Court, which could result in a prior Will being deemed to be your ‘Last Will and Testament’ or if no prior Will, your estate being dealt with under the intestacy laws (the effect of which means that your estate is distributed pursuant to legislation, not your wishes).
The validity of an ‘at home’ Will was considered in the recent case of Re Chambers. In this case, the testator completed a ‘pre-printed’ Will which consisted of two pages. The first page contained all of the operative provisions of the Will, while the last page simply included the attestation clause (that is, a clause that is to be signed by the witnesses and which recites the formalities required to make the Will effective). The testator signed the Will underneath the gift clause and again at the bottom of the first page, but not in the attestation clause on the second page. On the other hand, the witnesses signed the second page in the attestation clause, not on the same page as the testator’s signature.
The Court was therefore required to consider whether there was any significance to the fact that the testator did not sign the attestation clause on the second page of the Will and the witnesses’ signatures were not on the same page.
Section 10 of the Succession Act 1981 (Qld) provides that a Will, among other things:
Must be in writing and signed by the testator (or someone else in the presence of and at the direction of the testator);
The signature must be made or acknowledged to be made by the testator in the presence of at least 2 or more witnesses present at the same time;
At least 2 of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other;
The signatures need not be at the foot of the will;
A will need not have an attestation clause.
The Court particularly focused on the placement of the testator’s signature and ultimately determined that the Will had been validly executed. The evidence to support this decision was that the testator included his signature at the bottom of the first page of his Will, there were no operative provisions following his signature, the witnesses were each present with the testator and saw him sign the Will and the witnesses attested and signed the Will in the presence of the testator. The Court further determined that there is nothing within s 10 of the Succession Act 1981 (Qld) which requires the witnesses to sign the same page or place as the testator.
Whilst this was a good outcome for the testator’s estate, it could have easily gone the opposite way and shows the importance of ensuring your Will and any other testamentary instruments are validly prepared and executed, as the failure to do so can have dire and costly consequences.
The team at Thompson McNichol Lawyers are well versed in the requirements imposed by s 10 of the Succession Act 1981 (Qld) and are able to assist in ensuring your Will and any other testamentary instruments have been prepared and executed correctly so as to avoid any unnecessary complications for your loved ones.
If you require assistance with preparing your Will or any other testamentary document, please contact Thompson McNichol Lawyers on 07 5443 1566.
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