Because of their importance and legal consequences, there have always been strict rules in place with respect to not only how a Last Will and Testament is to be prepared, but also as to how it is to be executed. These strict obligations are put in place to guard against fraud and to also ensure that potential beneficiaries can have clarity as to what the Will maker intended.
And while the Succession Act is generally unrelenting in its requirements for a Will to be a legal document, in exceptional circumstances, a non-compliant Will can still be made valid if a Court declares it to be so.
In a rather extreme example, the Queensland Supreme Court recently admitted to Probate a “Will” that was written on an iphone. The Will maker was a gentleman who intended to commit suicide and shortly before he did so he drew up some documents on his iphone that included a document which was said to be his Last Will and Testament. It was not executed in accordance with the ordinary requirements of the Succession Act and was presumed to be invalid, but Justice Lyons of the Queensland Supreme Court found that the document should be a valid Will. This finding was because it met the statutory requirements under Section 18 of the Act because it otherwise complied with all of the usual requirements of nominating an Executor and alternate Executor and then setting out how his estate was to be distributed.
Whilst the case is a rather extreme example, it does demonstrate that Courts will bend over backwards to attempt to ensure that the wishes of a deceased are complied with. Regrettably, in the case before Justice Lyons, it became a rather expensive exercise to have the Will declared a valid one so preparing “Wills” on an iphone is certainly not recommended! A properly prepared and executed Will does certainly go a long way to reducing the cost of administering an estate and will provide peace of mind to the Will maker, knowing that they can feel confident that their wishes will be carried into effect.
Travis Schultz Managing Partner Schultz Toomey O’Brien Ph: (07) 5413 8900 Fax: (07) 5413 8958