Certain formalities exist when executing a Will to dispose or administer property of a deceased person.[1] For a Will to be valid, probate will contemplate both the common law and statutory law to determine the testators declared intentions.[2]

The formalities of a Will are in place to ensure people who complete them can have confidence they are operative and definitive.[3] Most Australian jurisdictions therefore require the testator to sign the Will or another person to do so in the presence of the testator and by their direction.[4]

In Queensland, there are also further requirements of witnessing and attestation by a witness.

Although formalities exist, there are further provisions allowing Courts to uphold the validity of a ‘Will’ notwithstanding requirements may not be strictly followed.

Formal Requirement of Writing

Generally, a Will is not valid unless it is reduced in writing.[5] The Interpretation Act 1954 (QLD) provides the approved methods of ‘writing includes any mode of representing or reproducing words in a visible form’. If a Will is written, care should be taken to use the same method, as it has been held that if both pencil and ink are used, pencil will only be considered deliberative and not testamentary.[6]

There is no restriction on the language used by the testator and even a Will written in code can be admitted to probate provided extrinsic evidence is available for the person deciphering it.[7] There are also no requirements as to what the intention is expressed on and even a Will written on a wall of a testator’s house is sufficient.[8]

Formal Requirement of Signing

Signing is essentially an acknowledgement that the writing is that of the maker of the document. The requirement of signing has been construed liberally in the Courts, which have indicated that the testator must place some mark on the Will with the intention of it being a signature. Justice Lowe  in the case of Re Male[9] expressed “the real test is whether what has been written by the testator was written by him as an authentication of what precedes the Will”.

Previously, it was a requirement that a signature be placed “at the foot or end thereof” but this was amended following the enactment of the Wills Act 1963 (UK) that was followed in all Australian jurisdictions until Tasmania and Australian Capital Territory amended this.[10] In accordance with the provisions of the Succession Act (Qld) 1981 section 10(3)-(4), the testator must sign the Will in the presence of two or more witnesses.

Formal Requirement of Attestation

The Succession Act (Qld) 1981 section 10(4) further provides that at least 2 witnesses need to sign the Will in the presence of the testator (but not necessary in the presence of each other). This requirement essentially means the witnesses must not only be present but also ‘mentally’ present including not being drunk or impaired.[11]

Attestation is distinguished from subscription being that attestation is the act of witnessing the testator sign and subscription being the witness’s signature on the Will. The validity therefore depends on the attestation and subscription after the testator has signed or acknowledged.[12]

It is also noted that a blind person cannot witness a Will under s 10(10) of Succession Act (Qld) 1981.

Anyone, however, with mental capacity and credibility to give evidence in a court can witnesses a Will.

Informal Wills

It is recognised that not all Wills are required to be in print format and the courts have previously approved or accepted many ‘informal wills’ as being a last Will of a deceased person.

Here are some examples of informal Wills:

• Audio and video Wills are recognised as documents for the purposes of dispensing provisions. It was held in Estate DM Edwards: Treacey v Edwards [2000] NSWSC 846, that an audio tape signed by the testator was a ‘document’ for interpretation purposes and that it could be admitted to probate under the dispensing provisions

• In Yazbec v Yazbec [2012] NSWSC 594 a document entitled “Will.doc” found on a deceased’s hard-disk was admitted to probate

• In Re Yu [2013] QSC 322 a will created on an iPhone was admitted to Probate. In this case, the evidence showed that a deceased person prepared the iPhone will moments before committing suicide

• Suicide notes can also embody testamentary intentions. As an example, in Costa and Another v The Public Trustee of NSW [2008] NSWCA 223,  the Court of Appeal held that a suicide note, which was a hand-written poem and found in the deceased’s bedroom addressed to the deceased’s parents was sufficient

• Hospital clinical notes

• A plasterboard wall and a paper envelope; in the case of Estate of Pantelej Slavinsky, deceased (1988) 53 SASR 221, the testator wrote out a Will in Ukrainian on a plasterboard wall stating “To all my nieces USSR” and the name and address of one niece, together with the name and address of another niece. There was also an envelope with his nieces name on it placed in a crack in the plasterboard wall. The words from the wall, together with the envelope, were admitted to probate successfully.

What Can Be Put In a Will?

What a testator puts in their Will is totally up to them, provided that it does not offence any requirements at law.

If you make your Will with one of our solicitors, you can ask questions to help you decide what is best for your individual circumstances.

Writing a Will can see that you can:

• Name a testamentary guardian for minor children or a person with a disability

• Ensure that your loved ones receive specific gifts such as money or chattels

• Establish specialised trusts to provide for young children or a person with a disability or high needs

• Provide for the care of any pets into the future

• Express your wishes about your funeral arrangements or what is to happen with your body

• Give money to charity or philanthropic entities

• Gift artwork to museums for care and enjoyment by the public

Can I Revoke My Will?

A testator can revoke their Will at any time or otherwise enter a different arrangement if their wishes change over time. This is provided always that they still have the requisite testamentary capacity to change their Will.

When Should I Make or Update My Will?

We recommend that any person over 18 years of age should make or update a Will, and especially if:

• They are married, enter a civil partnership of de facto relationship

• They separate or divorce

• Children or grandchildren are born

• Property is bought or sold

• A persons financial circumstances significantly change

• An executor or trustee dies

• A specific gift is no longer available to be gifted

• You do not have a Will

• You are travelling overseas

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[1] JH Lanbein, ‘Excusing Harmless Errors in the Execution of Wills’ (1987) 65 Journal of American Bar Association 1192.

[2] AG Lang, ‘Formality v Intention- Wills in the Australian Supermarket’ (1985)15 Melbourne University Law Review 82.

[3] Ibid.

[4] Ken Mackie, Principles of Australian Succession Law (Lexis Nexis, 2007).

[5] Succession Act 2006 (NSW) s 6(1)(a).

[6] In the Good of Adam (1872) LR 2 P D 367.

[7] Kelly v Charmer (1856) 53 ER 76. 

[8] Estate of Slavinkyj (1989) 53 SASR 221. 

[9] [1934] VLR 318, 320.

[10] Wills Amendment Act 1852 (UK) s 1; Wills Act 1992 (Tas) s 11; Wills Act 1968 (ACT) s10. 

[11] Hudson v Parker (1844) 165 ER 1419.

[12] Ken Mackie, Principles of Australian Succession Law (Lexis Nexis, 2007).