A Will is something that all adults should have regardless of the size or value of their estate and while it is technically possible for a handwritten Will to be a valid legal document, there are some intricacies attached to drafting a Will that may be overlooked if it is not prepared by a professional.
The question of whether or not a handwritten Will is valid has less to do with the means by which it was drafted and more to do with its content, the draftee’s intent and how closely legal procedure was followed at the time of its signing.
What are the key elements to a valid Will?
The Succession Act 1981 (Qld) provides that a Will may be handwritten but that it must be legible, the same writing instrument must be used to prepare the entire Will (whether typed or handwritten) and it is preferable that the Will is completed in English.
Handwritten or not a Will must contain certain elements. Put simply, these are:
- a clause that revokes any prior Wills made by the person making it (the testator);
- instructions set out by the testator for how they would like their estate distributed;
- signatures; and
- the date.
For a Will to be valid, the original document must be signed by the testator as well as two witnesses to that person’s signature. The witnesses must sign the Will after the testator has signed their name. All parties must be present to sign the Will at the same time and it is usual that the testator and each witness also sign every page of the Will.
When the Will is signed by each party they should also write that day’s date. This is important as the date may need to be relied upon to ensure it is the deceased person’s last Will. The omission of a date may cause delays during probate as the witnesses may need to swear an affidavit stating the date on which the Will was signed.
The testator’s state of mind
For a Will to be valid the testator must have ‘testamentary capacity’, which means the document can only be drafted when the testator is of sound mind, understands what they are agreeing to and not under duress or otherwise subject to any kind of coercion.
When might a handwritten Will be deemed to be invalid?
If you have prepared a handwritten Will that is relied upon for the distribution of your estate at the time you pass away, a court may still find it to be invalid if:
- any of the above elements are missing;
- the document has been destroyed or its contents otherwise impaired over time or due to it not being stored properly;
- there is doubt about the legitimacy of its preparation; or
- as with any Will, certain parties, such as a spouse or child, were not adequately provided for in the Will.
An informal Will is a way for the testator to record their intentions for their estate without following correct legal procedure. An example of this may be if the deceased recorded a video message or wrote down their final wishes after being in a serious accident in an isolated area. A court may take these wishes into consideration despite this format not being a formal Will, particularly if no prior Will existed or the deceased’s personal circumstances had changed significantly since they last prepared a Will.
The best way to ensure the validity of your Will is to have it prepared by a lawyer who specialises in Wills and estates. Contact us to speak with an experienced wills lawyer who can assist.