A Will must be in writing, signed by the person making the Will (or someone else in the presence of the Will maker and at their direction), with the signature to be made (or acknowledged) in the presence of two witnesses who must then sign the Will in the Will maker’s presence.
The Queensland Supreme Court recently was called on to decide whether a document which did not satisfy those conditions could still be a valid document determining the distribution of the assets of an Estate.
The deceased had made a Will in November 2000, which the Court described as a “complicated Will” naming a number of different beneficiaries including various friends, a hospital foundation, the Red Cross, together with various associations or foundations supporting vision impairment (as the deceased was vision impaired).
In the later years of the deceased’s life she apparently became “increasingly difficult to get along with” with the Court observing that “many of her friends and acquaintances distanced themselves from her as a result”. However three of the deceased’s friends continued to maintain contact with the deceased, both by visiting her and maintaining telephone contact.
While cleaning the deceased’s house after she had passed away a piece of paper was found, dated 10 October 2009 which stated “because I can’t get to my solicitor I want to change my Will to leave my house to Barbara Castiglione and my shares to Robert and Val Klauke” (being the friends who had maintained contact with the deceased). The document was signed with the deceased’s name. The Court was obliged to determine whether that informal document was a valid addition to the deceased’s earlier Will.
The Court has power, under the Succession Act to dispense with the formal requirements in relation to a Will if it is satisfied that the document was intended to form the Will, or part of the Will (or alteration of the Will), taking into account the evidence as to how it was signed, and of the person’s testamentary intentions (i.e. how the person proposed disposing of their assets). The Court was satisfied that the document identified changes that the deceased wished to make to her Will, it being clear that she wished to leave her property to her friends. The people identified in the document were those friends who had maintained contact with her, with the Court being satisfied that the document was “consistent with what might be anticipated to be her testamentary intentions”.
The Court was also satisfied that the wording of the document constituted a Will, rather than simply being a “note of instructions or a draft Will or a trial run”. The Court was satisfied that the document represented the deceased’s testamentary intention and ordered that the disposition of those assets proceed in accordance with that document. I expect the Court was somewhat swayed by medical evidence that the deceased retained capacity to make her own decisions at all times and the Court was therefore prepared to recognize the document as her intentions to provide a gift to those people who had continued to provide support to her in her later years.