Homemade and Handwritten Wills (Qld)
Many people who want to make their will do not have access to a lawyer and may attempt to create a valid homemade will. These wills are often handwritten (also known as holographic wills). However, many homemade wills lead to disputes over the testator’s intention as they often contain ambiguous provisions and/or do not conform to the requirements for a valid will. This article outlines the problems that commonly arise with homemade and handwritten wills.
Requirements for a valid will
For a will to be valid in Queensland, it must conform to the following requirements.
- The testator much be over 18 (unless they are married or where the Supreme Court permits a younger person to make a will)
- The will must be in writing (whether typed, printed or handwritten)
- The will must be signed by the testator and by two witnesses
- The testator must have testamentary capacity
Are handwritten wills valid?
A handwritten will is a legally enforceable document provided the above requirements are met. However, it is common for handwritten and homemade wills to be left unsigned or unwitnessed, which leaves questions as to whether the testator intended the document to be their last will or whether they had doubts about its content and were planning to make changes.
Any will in Queensland, whether homemade or drafted by a lawyer, is interpreted according to the principles of construction set out in the Succession Act 1981. Section 33C of that act provides that where a provision of a will is ambiguous, evidence of the testator’s intention may be used to help interpret the will.
Handwritten changes on a will
It is common for a testator to want to make changes to their will after it has been signed. The change may be something simple like the amount of money being left to a beneficiary or the name of a beneficiary. Alternately, a testator may wish to make major changes to how their estate is to be distributed.
A testator who is changed their will may choose to make a whole new will in order to incorporate the change or they may make alternations to the existing document. Under section 16 of the Succession Act 1981, such alterations are valid provided they are signed and witnessed, and the intention of the testator is clear.
Challenges to homemade wills
If a will is homemade or handwritten, the chances that it will fail to comply with the formal requirements for a will are elevated. If a person with an interest in a deceased estate thinks that a will is invalid, they have standing to challenge the will in court. Persons with an interest in a deceased estate are those who are named as beneficiaries in an earlier will and those entitled to inherit from the estate under intestacy laws.
What happens if the court finds a will is invalid?
If the court finds a will to be invalid, it will usually also make an order as to what happens to the estate. If there is an earlier will that is valid, the court will validate this will and it will be administered according to its terms. If the testator did not make any other will, their estate will be dealt with according to the rules of intestacy.
Seek legal advice
Anyone who is considering making a will should seek legal advice before doing so. While a homemade will may seem like a cheaper and simpler alternative, these wills often lead to disputes about the validity of the document. These disputes can be emotionally and financially costly for the people involved.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.