When you imagine a Will, you probably see a formal, written document, hand signed by the will maker, right? Generally, you would be spot on. In fact, in Queensland, section 10 of the Succession Act 1981 Act (“Act”) prescribes how a Will must be executed, including a requirement for a Will to be in writing, with at least two witnesses, for example. However, there have been a variety of cases where the Court has been asked to consider whether a document or some other form of communication by a will maker that does not fit the usual mould of a Will, can still be a Will in the eyes of the law. These Wills, if allowed by the Court (under section 18 of the Act) are known as informal Wills.
Here are just a few examples of some unusual informal Wills:
1. The Unsigned Will(In the Will of Eileen Duffus, (deceased)
- In this decision, which was handed down by the Court in July 2022, the will maker signed all pages of her Will but crucially failed to sign the attestation clause which is required under section 10 of the Act. However, after careful consideration, the Court accepted the document as a Will and admitted it to probate.
2. The Video Will(In the Estate of Leslie Wayne Quinn (deceased) [2019] QSC 99)
- In this case, shortly before the deceased died, they recorded a video on their phone stating that the recording was intended to be their last Will. As the video did not meet the formal requirement of a Will under section 10, the Court was persuaded to allow the video to be admitted for probate as an informal Will.
3. The Unsent Text Message Will (Re Nichol; Nichol v Nichol & Anor[2017] QSC 220)
- Here the Court allowed an unsent text message which was typed by the deceased into his phone shortly before his death to be admitted to probate.
4. The Handwritten Note Will (Re GEW[2020] QSC 119)
- In Re GEW, the deceased wrote a note shortly before they died which they dated but did not sign. In addition, there were all no witnesses to the making of the ‘Will’. Even so, under s18 of the Act, the Court decided to allow the note to probate as an informal Will.
5. The Audio Recorded Will (Re: Estate of Carrigan (deceased) [2018] QSC 206)
- In this case, the deceased left a voicemail and a dictated voice memo shortly before his death stating what he would like to happen to what he described as ‘his assets’ and his life insurance. Margaret Arthur, Special Counsel here at HopgoodGanim Lawyers was tasked with representing the interests of the deceased’s young children as their litigation guardian in this matter. Ultimately, Justice Boddice of the Supreme Court of Queensland allowed the recordings to be admitted to probate.
Although, these unusual examples of Wills were ultimately allowed to be admitted to probate, there are cases where the Court do not consider these informal expressions of a person’s wishes, to be accepted as an informal Will.
So, what does all this mean for you? Why not take this opportunity to check your estate planning documents such as your Will and make sure your wishes are reflected and importantly, that your documents have been properly completed? Otherwise, you run the risk of your wishes not being carried out after you die or if your documents do not meet the formal requirements of s10 of the Act, then an application may be required to ask the Court to decide whether you have instead made an informal Will.
All of this assumes that you have a Will to check. You do, don’t you?! … because dying without a Will (and many do), well that is a whole other article!
If you would like to discuss your existing estate plan or if you would like to make a new estate plan, contact our Succession and Estates Team.