What Constitutes a Valid Will?
A valid Will must meet certain formal requirements outlined in the Succession Act 1891 (Qld), (“the Act”) and common law.
These requirements are the Will maker must have mental capacity upon making the Will, evidence of the Will makers’ testamentary intention, knowledge, approval, the Will must be made on the absence of any suspicious circumstances, fraud and undue influence. The Will must also be in writing and signed by the Will maker and signed in the presence of two witnesses as stated in section 10 of the Act.
What Constitutes an Informal Will?
An Informal Will is a document that purports to state the testamentary intentions of a deceased person and does not comply with the formal requirements (as stated above) and of s 10 of the Act. The document needs to be proven to be the last Will of the deceased. Usually, a document which purports to be an Informal Will may have construction issues, may not have been witnessed by two witnesses, or signed in the presence of two witnesses.
Under section 18 of the Act, the court may dispense with the formal execution requirements for a Will under section 10 of the Act. Therefore, an Informal Will may be granted to probate in court by this avenue.
Examples in Common Law:
Documents that have been granted by the court in common law to constitute an informal will are a word document stored on a computer; text message; an unsent text message; a suicide note; videos; voice recordings; solicitor’s notes of the meeting with the deceased or a draft Will which has not been signed.
What to do if you find a Document which may be an Informal Will:
If you find a document you feel might constitute an Informal Will and you are the nominated executor in that Will, you should seek legal advice regarding whether an application to the court should be made as there are many avenues a person can take to deal with an Informal Will in and out of court.
If you would like more information regarding your Will or if you would like to implement a Will, please contact Sarah Meyer on (07) 4417 4417.