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Financial planning, Investment and Self Managed Super Fund Article
Will Formalities
By Tony Crilly
1st November 2005
This article may be out of date.
As we all know, the business of making wills has always been a question of getting the words exactly right and the procedures for signing complied with carefully.
Otherwise, the person relying on the will after the willmaker has died may find that it was invalid and the residue of the estate is shared between a wider class of beneficiaries which the willmaker may have thought unworthy of the bequest.
Recently we have had a raft of changes in the Succession Act in Queensland relating to the manner in which a will may be executed and the impact on the appointments that are made.
In the past, the legislation was the strictest of its kind in Australia and required very clear reasons if it were not complied with. This is not a bad thing if the circumstances of signing are relaxed. If there was a difficulty in getting a witness together with another witness and the person was dying, it may have caused the will to be invalid. This was a real problem if you had a late change of mind and the formal requirements were not met.
Substantial compliance will be sufficient if it expresses the testamentary intention of the person and extrinsic materials can be used as evidence of that fact, including statements made as to the manner of the execution. The willmaker can leave a space after the words of the will, but anything after the signature will not be taken and read as included. Alterations can be made but those changes must be signed and witnessed at the foot of the page at the margin where they appear.
The will must be:
- signed at the foot or end
- by the testator
- in the presence of two witnesses
- who are present at the same time
- who must attest the signature at the same time
- be in the presence of the testator.
There are many cases where the person was well intended, but failed to secure adequate evidence to demonstrate that the document recorded the last wishes and that there could be no doubt about the authenticity of the document.
A person who witnesses a will need not know they are witnessing a will, provided they are not blind and could give evidence in a court. Gifts made to an attesting witness of course are not valid.
So what does all this mean for the likes of the general public who may prepare a DIY Will and have it signed at home? The reality is that although substantial compliance will be sufficient, in some cases it would be a foolish person who was remiss about meeting the formalities required.
Why leave the most important document you can sign, for its effect after your death, to chance?
In my opinion, the risk of not achieving substantial compliance under the amended legislation is not worth taking when it comes down to careful estate planning. There are many cases where the person was well intended, but failed to secure adequate evidence to demonstrate that the document recorded the last wishes and that there could be no doubt about the authenticity of the document.
The point of all this procedure is to ensure that issues such as fraud and coercion are ruled out as a circumstance in the creation of the will document.
I always adopt a cautious approach to ensure the procedures are beyond question when clients sign documents involving a testamentary disposition. I always have them sign in my office or that of another lawyer. I always have two independent witnesses present at the same time during the entire signing process. I always have every page signed and every alteration signed and witnessed. I always insist on using the same pen. I will not allow any person leave until it is all done. I record this on a file note for filing with the will. Of course extreme urgency will bring this process unstuck in the hands of a client.
At least if every effort is made to comply and a statement or affidavit is taken at the time of signing for the reasons of substantial compliance, a clear line of evidence can be relied on.
My point is still the same: if you have the time to get it right, why take the risk of having the document thrown out? Do not forget that the simple process of getting Probate depends on the attitude of the registrar in the State or Territory in which the will is to be proved. Why would you risk a challenge by the registrar over substantial compliance if you want a smooth transfer of assets via the will?
There is a trend for willmakers to refer to separate lists or CDs and other means of assisting the court. This is a risky practice in itself. The way of the future is to have wishes recorded in electronic medium, but at present there is the simple requirement that the will must be in writing and signed by the testator.
I advocate extreme caution when signing such an important document, especially when it covers the appointment of a new controlling individual to a family trust or company acting as a trustee that comprises substantial assets of the person.
Get it right the first time I say!
Tony Crilly is a solicitor of The Supreme Court Queensland and principal of Crilly Lawyers; Succession & Commercial Law. He lectures at the Securities Institute and his team is located in Brisbane.
Tony may be contacted at tony@crillylaw.com.au
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This email is general in nature only and does not constitute or convey specific or professional advice. Legislation changes may occur quickly. Formal advice should be sought before acting in any of the areas discussed. Be aware that the information in these articles may become innaccurate with time. Responsibility is disclaimed for any inaccuracies, errors or omissions. Particular investments are neither invited nor recommended and hence this publication is not "financial product advice" as defined in Section 766B of the above legislation. All expressions of opinion by contributors are published on the basis that they are not to be regarded as expressing the official opinion of any other person or entity unless expressly stated. No responsibility for the accuracy of the opinions or information contained in the contributor's articles is accepted by any other person or entity. Copyright: This publication is copyright. If you wish to reproduce this article you require a license, which can be purchased here, to do so.
