If a will is signed or witnessed incorrectly it can cause problems, sometimes severe problems, for the administration of an estate. Some examples include where:
- a home will kit is used and the document is not signed and witnessed properly;
- a will is witnessed by a beneficiary;
- a person dies in extreme circumstances (e.g. in a war, natural disaster, suicide or accident) leaving a document purporting to be a will; or
- a person has given instructions to a solicitor for their will but dies before signing it.
Due to relatively recent changes in succession legislation it may be possible for the document to be treated as a valid will. In order to do so however it would be necessary to satisfy the court that the deceased person intended the document to be his or her will. This will usually require an application to the Queensland Supreme Court for an order pursuant to section 18 of the Succession Act 1981 (Qld). Keep in mind the expense of such an application however would be many times the cost of having your will properly prepared and reviewed by a solicitor.
There are limits to the court’s discretion however. Importantly, the court must be satisfied the document was, at the time the person passed away, intended to form the deceased person’s will. Therefore notes made by a person recording their intentions, or a draft of a will, may not be sufficient to constitute a valid will particularly if those notes or recordings were made well before the person passed away.
Whilst it may be possible to rectify an informal will, prevention is the best cure. Having your will properly prepared and reviewed by a solicitor will help ensure your estate goes where you want without delay and expense.