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31 October 2017 Unusual Wills and Where to Find Them: What makes a valid will?

By Angela Harvey, Partner and Esther Khoo, Graduate Solicitor

With the advent of technology, courts have had to grapple with difficult questions of whether to accept new forms of “documents” as wills.  In New South Wales, the Court has previously held a DVD recording was a valid codicil (see our analysis of the case here). 

More recently, in Nichol v Nichol [2017] QSC 220, the Queensland Supreme Court held an unsent text message with the words “My will” was a valid will.  The deceased, who committed suicide, left a message on his mobile phone asking his brother and nephew to “keep all that I have”, including the house and superannuation, as well as leaving burial instructions.  The Court held this was an informal will.  If the will was not valid, intestacy laws would apply (as we previously discussed here).

Lest you think of getting creative with your will, here are five things to know about what does and does not make a valid will in New South Wales:

1.The will must be in writing

To be valid, a will must be in writing, whether typed or handwritten.  Where the NSW Supreme Court held a DVD recording was a valid codicil, the deceased had already made a written will and then made amendments to the will orally, through video recording.  In the judgment, the Court warned against making informal oral wills as it increases the risks of litigation and creates issues for beneficiaries and potential claimants post-death of the deceased.

2.The testator must have testamentary capacity

Wills are battled over and heavily litigated solely on this point.  The classic case of Banks v Goodfellow sets out the four elements of testamentary capacity:

  1. the testator must understand the nature of the act and its effect;

  2. the testator must understand the property which he/she is disposing of;

  3. the testator must understand the potential claims on his/her estate; and

  4. the testator must not suffer from “a disorder of the mind”.

In the recent Queensland case of Nichol v Nichol, the wife contended that the deceased did not have testamentary capacity as the text was unsent and despite earlier suicide attempts, the deceased did not make a formal will.  The Court held that the deceased did have testamentary capacity.  The Court accepted the contents of the will referred to specific assets and evidence of his interactions with family members indicated the deceased did have capacity.  Suicide in and of itself is not equivalent to a lack of testamentary capacity.

3.The technicalities of signing a will

The testator must sign the will in the presence of two independent witnesses.  Beneficiaries cannot witness a will of which they are beneficiaries.  Interestingly, a will is still validly executed even if the witnesses are not aware the document they are witnessing is a will.  However, this may create practical problems at a later stage if the will is contested and witnesses to the will are called to give evidence as to the signing of the will.

4.Minimum age

Unless a person is married, a person can only make a will after they turn 18 years.  The Court may approve wills for persons under 18 years old in exceptional circumstances.  For a will to be made for a minor, an application to Court needs to be made.

5.The effect of marriage on a will

Marriage automatically revokes a will and if no new will is made, the estate will be administered according to the rules of intestacy.  The only exception is if the will was made “in contemplation of a particular marriage”.  This is difficult to prove as the courts look at the evidence to determine the deceased’s state of mind.

While an unsent text message and a DVD recording have been held by the courts to be valid, informal wills, the courts strongly warn against doing so.  The costs of having to prove an informal will and the delays in administering the estate make obtaining legal advice in drafting a will suitable for your needs the cheaper and wiser option.

Angela Harvey, Partner  |  Phone: +61 2 9233 5544  |  Email: axh@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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