In brief - A poorly prepared Will can result in additional cost to the estate
In order to ensure that your estate is administered in an efficient and cost-effective manner, it is important to understand the formalities required to execute a valid Will.
If the formal requirements of preparing a Will are not adhered to, an estate will incur additional and unnecessary cost when the executor (or next of kin) needs to make an application to the Supreme Court to obtain a Grant of Probate or Letters of Administration. Read more about the difference between these in our article Probate v Letters of Administration
Take care when using technology to prepare Will documents
There are many instances where uncertainty due to formal requirements not being observed have impacted on the administration of an estate. A recent example that generated media attention and highlighted the additional stress caused to family members, cost to the estate and delay to estate administration occurred last year, where the Supreme Court of Queensland was asked to determine whether a "Will" composed in an unsent text message was valid.
There is no doubt that technology in many circumstances allows for the effective preparation of documents. However, while electronic documents can be prepared easily, their convenience should not encourage slackness when it comes to properly drafting and executing a Will, and observing the required formalities.
Queensland Succession Act outlines five requirements for execution of a Will which are similar in many states
1. A will must be in writing
Writing is defined as any mode representing or reproducing words in visible form.
2. It must be signed by the testator
Or, it can be signed by someone else in the presence of and at the direction of the testator. However, there should be independent evidence of this.
3. The signature of the testator must be made with the intention of executing the Will
4. The signature of the testator must be made in the presence of at least two adult witnesses
Witnesses must be over 18 years of age. They should not be beneficiaries or spouses of beneficiaries under the Will.
5. The witnesses must attest and sign the Will in the presence of the testator
A person who cannot see and attest that a testator has signed a document may not act as a witness to a Will.
The above list is not exhaustive. The formal requirements are similar between states, however, variations do exist.
Additionally, it is important to be aware of informal requirements that should also be attended to. For example, dating the Will, using the same pen for signing or not tampering with staples once affixed.
Your Will should be prepared carefully to reduce costs to your estate and burden on executors
The simplest solution to avoid doubt regarding the validity of a Will is to take the time to properly prepare it.
Preparation of a valid Will creates efficiency when arranging estate administration, reduces the cost to your estate and minimises stress to those dealing with your estate. Shortcuts should not be taken, as often the "quick, cheap and easy" Wills result in additional cost to your estate and delay to administration.
You should consider speaking to a lawyer together with your accountant or financial planner regarding your Will and estate plan.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.