Last updated 5 December 2016
The Succession Act 1981 (Qld) (Succession Act) provides that a will should comply with the following formalities:
- The will should be in writing. ‘Writing’ is defined to mean any mode of representing or reproducing words in a visible form. Ideally, a will should be typed, but a handwritten will is valid so long as it is clearly printed. The same writing instrument (e.g. a typewriter or pen) should be used for the whole document in order to avoid confusion about what was intended by the will. The will can be in any language, although to avoid problems of translation and interpretation, it is desirable that it be written in English.
- It should be signed by the person making it. A signature includes a mark in the case of a blind or an illiterate person. It also includes, in exceptional circumstances, the signature of some other person at the direction of and in the presence of the person making the will (the testator). While not strictly necessary, it is advisable that the signature appears at the end of the will, and if the will is longer than one page, the testator and the witnesses should also sign their name or write their initials at the foot of all other pages of the will.
- The will should be dated when it is signed. When no date appears, it may be necessary for the witnesses (after the death) to swear an affidavit about the date on which it was signed. A will takes effect from the date of the testator’s death, not from the date of signing. However, the date the will is signed is important to ensure that it is the deceased’s last will.
- The signature of the testator should be witnessed by two witnesses. The witnesses must sign after the testator has signed. One of the witnesses may also be the person who signed for the testator, or who helped the testator sign. Both witnesses must be present together at the time of signing by the testator. To avoid confusion, it is advisable for witnesses’ signatures to appear immediately below that of the testator. Witnessing the will is known as attestation.
If these formalities are not complied with, the will may not be valid (s 10 Succession Act). If there is no valid will, the deceased’s estate will be dealt with as an intestate estate. However, a court may declare any document or a part of a document (even a document that is not in traditional written form) to be a valid will, an alteration of a will or a revocation of a will, if it is satisfied that the testator intended the document to form the person’s will (s 18 Succession Act).
Custody of a will
A will is a very important document and should be kept in a safe place. Solicitors, the Public Trustee and private trustee companies will usually hold a will for a person and not charge for this service. The executor or a close friend or relative should be told the whereabouts of the will so that it can be easily located when the testator dies.
An Australian legal practitioner is authorised to act in connection with an international will under the law of a Convention country. Irrespective of where the will is made, the location of the assets and the nationality, domicile or residence of the testator, an international will is valid as regards form, if it is made in the form that complies with the relevant provisions of the Convention.
An Australian legal practitioner, as an authorised person, has a number of duties to undertake in the preparation and execution of the will, and in annexing a certificate, completed in the prescribed form, to the will itself.
A document that expresses the testamentary intentions of the author, but does not comply with the formal requirements required by s 10 of the Succession Act for a valid will, is commonly known as an informal will.
Under s 18 of the Succession Act, the court may dispense with the execution requirements for a will, its alteration or revocation and declare an informal will to be valid. The broad definition of the term ‘document’ assists in such an application, because it includes any paper or other material on which there is writing, any disc, tape or other material from which sounds, images, writings or messages are capable of being produced or reproduced (sch 1 Acts Interpretation Act 1954 (Qld)).
A number of ‘electronic’ informal wills have been found to be valid. Examples include documents found on the computer of the deceased, a series of messages on a deceased’s iPhone and DVD recordings.
For a successful proving of informal wills, the court must be satisfied that the deceased intended that the actual document before the court was to be their will. In one case, a ‘computer will’ was found not to be valid because the court determined that the deceased had not intended that particular electronic document to be her will (see Mahlo v Hehir  QSC 24).
‘Video wills’ and other electronic forms have considerable risk associated with them. Their informality may not meet statutory requirements and the prospects of such wills being uncertain or ambiguous is significant. The expense of bringing such applications to the court will certainly reduce the assets of the estate.