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Testamentary Intention (Qld)

A will is only valid when the document was written with testamentary intention: that is, it was written with the intention of being a last will and testament. Testamentary intention should be expressed so that there is no question as to its existence. If there is a doubt about whether a document was intended to be a will, this is likely to result in it being held to not be a valid will. This article explains the nature of testamentary intention and how it was interpreted during a recent contested will case in the Supreme Court of Queensland.

What Is Testamentary Intention?

Most wills begin with a strong statement of testamentary intent. The first words of a will typically identify the testator, express an intention to make a will and revoke all former wills. However, not every will has this formal opening statement. Where there is doubt, inquiries will be made into the circumstances surrounding the making of the will to determine whether there was a testamentary intention in the making of the document. It is important to note that the “intention” being assessed is not what the testator was thinking when they executed the will, but rather whether the document demonstrated the intention of making a will.

Examples of Documents Found To Exhibit Testamentary Intention

Case law from across Australia shows that the form of a document does not preclude it from demonstrating testamentary intention. There have been cases where the courts have found necessary testamentary intention in documents as diverse as unprinted computer documents (Mahlo v Hehir [2011]), documents created and recorded on smartphones (Re Yu (2013]) and video recordings left on a DVD (Mellino v Wnuk [2013]).

Re Nichol; Nichol v Nichol & Anor (2017) contains a particularly striking example of the Supreme Court’s assessment of testamentary intention. In that case, a man wrote a text message just prior to committing suicide instructing that his brother and nephew receive his house and superannuation accounts. The text message included the words “My Will” and a smiley face. While the text message was never sent, it was found on the man’s phone after his death. The question before the court in this case was whether the text message contained the necessary testamentary intention to constitution a will.

The court found that the unsent text message did convey testamentary intention. It was clear that despite the informality and perhaps impulsiveness of the drafting of the text, the man was at that time contemplating his imminent death, and intended to write the text message to dispose of his property. The court was also compelled by the fact that the text message showed a clear awareness of the assets that the man held in his estate. Finally, by making provision for his closest family members, the deceased demonstrated an awareness of the individuals who may have a claim upon his estate after his death.

Case Study

The recent case of Sadlier v Kahler [2018] considered the issue of testamentary intention.  In this case, the deceased left a handwritten document with his solicitors and they provided a receipt for a “will”. After the deceased’s death, the solicitors provided a copy of the document to the family and described it as a “purported will”. The document was entitled “My Will Dated 15 January 1984”. It listed assets and nominated the deceased’s brother as his beneficiary (provided that his brother had not separated from his wife, in which case his brother’s children would inherit). The document was signed by the deceased but was not witnessed.

The Supreme Court first considered whether the document was, in fact, a will. It clearly failed to meet the formal requirements, most notably in that there were no witness signatures. However, the court noted that there are legislative provisions in the Queensland Succession Act 2006 to save these types of informal wills. The second issue was whether the document demonstrated the requisite testamentary intention to constitute a will. The court found that the use of the words “My Will” was strong evidence that the document was intended to express the testamentary intentions of the deceased. The court also found it compelling that the deceased deposited the document in the safe custody of his solicitor and the solicitor provided a receipt that described the document as a will. These factors were sufficient to establish the necessary testamentary intention.

It is vital that a testator consult a solicitor when estate planning so that their testamentary intention is accurately reflected in the language of the will. Otherwise, the estate may have to defend costly litigation or be distributed under intestacy law. Please contact our experienced solicitors today if you need to contest a will because of unclear testamentary intention. Please call 1300 038 223 to talk about any testamentary, probate or succession issue with our contested wills team.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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