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What Happens if a Will is Torn or Marked? (Qld)

A will is generally valid if it has been executed according to the formal requirements of the jurisdiction where it is made until such time as it is revoked by the testator. A will that is not executed according to the formal requirements, such as an unsigned or unwitnessed will, may also be upheld by a court as valid if there is evidence that the testator intended it as a legally binding document. But sometimes a will is executed and before the testator dies, the will is torn or marked or otherwise damaged. This may occur accidentally or as a deliberate attempt to invalidate the document. This article deals with what occurs when a will is torn or marked in Queensland.

Will is torn or marked in order to alter it

Under the Succession Act 1981, a will may be altered if the signature of the testator and the witnesses to the alteration are made either in the margin or near the alteration or as authentication of a memorandum referring to the alteration and written on the will (section 16).

If a will is torn or marked in a way that appears to have been done with the intention of altering it but the formal requirements of signing and witnessing the alternation have not been complied with, a court will need to decide whether to affirm the will as valid with reference to evidence of the testator’s intention and the circumstances surrounding the alteration of the document.

Will is torn or marked in order to revoke it

Section 13 of the Succession Act 1981 sets out the ways in which a testator may revoke a will they have executed. These include by making another will, by executing a document that declares an intention to revoke the will or part of the will or by burning, tearing, or otherwise destroying the will with the intention of revoking it or writing on the will in a way that satisfied the court that the testator intended to revoke the will.

Will is torn or marked accidentally

If a will is torn or marked and there is no reason to believe that the testator intended to revoke or alter the will, the executor must seek to have the will declared valid by a court. The executor will need to adduce evidence as to the circumstances under which the will was damaged and establish that it was not the testator’s intention to revoke the will.

Will is torn or marked by someone other than the testator

If a person willfully and unlawfully destroys or damages another person’s will in Queensland, they are guilty of a serious offence. This offence is governed by section 469 of the Criminal Code 1899 and carries a maximum penalty of 14 years imprisonment.

Testamentary capacity

In order to revoke or alter a will, the testator must have testamentary capacity. Testamentary capacity is the ability to understand the nature of a will and the operation of its provisions. The level of capacity required depends on the complexity of the will and the number of claimants involved.

If the testator no longer has testamentary capacity and destroys or damages their will with the intention of revoking it, the will remains valid. However, if the testator has testamentary capacity and deliberately destroys the will in order to revoke it, the will is no longer valid.

What if the will is lost?

Sometimes family members of a deceased are aware that the deceased made a will but cannot find the will. Alternately, they may have a copy of the will but may be unable to find the original. In this situation, what occurs will depend on the situation.

If the original will was known to be with the testator, but cannot be located, it will be presumed that the testator destroyed the will with the intention of revoking it.

If the original will was held by someone other than the testator and has been lost, a person seeking to have it upheld will need to produce a copy (signed or unsigned) to the probate office. They will need to prove that the copy is accurate, that it was validly signed and witnessed and that it was not intentionally destroyed by the testator. If the executor cannot locate a copy of the will, they must try to track down where the original will was kept. If no will can be located, the estate will be dealt with according to the rules of intestacy.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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