Attwood Marshall Lawyers Estate Litigation Partner, Lucy McPherson, recently joined Robyn Hyland on Radio 4CRB to discuss what can go wrong if a Will is not signed correctly in the eyes of the law.
You’ve thought about who you want to inherit your estate after you die, and you have executed a Will to ensure your wishes are fulfilled. Sounds simple enough. But leave any room for doubt in the Will and that could mean serious consequences in executing your wishes. From delaying the distribution of your estate, invalidating the document, to lengthy court hearings. The perils of not paying attention to the minutiae of a properly signed Will are far reaching.
In the recent case centred around the Will of Kevin Chambers, the implications were experienced firsthand by the beneficiary named in Kevin Chambers Will, who had to jump through additional legal hoops in order to fulfil her late father’s wishes.
Case Profile
Kevin’s Will was executed in October 2017, leaving his entire estate to his only child, his daughter, Cherie. He also appointed his grandson, Daniel, as trustee and executor in the Will.
Fast forward to March 2023, when Kevin passed away at the age of 91, the Will was produced in order to seek a grant of probate and distribute Kevin’s estate. However, it hit a hurdle because although Kevin had signed the first page of the document, he failed to sign the second page. To make matters worse, the witnesses signed the second page of the Will but overlooked signing the first page.
These minor oversights brought the Will into question, initiating a lengthy and time-consuming process for the beneficiary to claim the estate.
Following Kevin’s death, Daniel decided to renounce his right to act as executor. When an executor renounces their role or is unable or unwilling to act, it creates a vacancy in the administration of the estate.
Therefore, Cherie applied for Letters of Administration which is a court order appointing an individual, or individuals, as the administrator to distribute the assets of the deceased estate, in the absence of a valid Will appointing a designated executor.
However, the Court registrar stated they did not have the authority to issue the grant as the Will had not been executed properly. The registrar asked Cherie to file an application before a judge for dispensation of the execution requirements – this ensures a Will’s validity.
Cherie filed an application to the court constituted by a judge for letters of administration and asked the application to be determined without an oral hearing (where both parties present arguments and evidence verbally in front of a judge or adjudicator). A judge also had to decide whether the Will was correctly executed, and if it had not been, then the judge had to consider whether an order should be made dispensing with due execution.
What happened next?
Any matters dealt with at an oral hearing at court will invariably mean costs involved for the applicant. A judge will only decide on an application without an oral hearing if it is appropriate to do so, and if the respondent does not require an oral hearing.
Luckily for Cherie, the decision was made to proceed without oral hearing, considering factors such as the absence of opposition, proper advertising of the application for letters of administration, and no substantial disputes of fact.
Cherie also had two witnesses to the Will who submitted affidavits stating that they had witnessed Kevin sign the Will on the date it was signed and swore to the subjective intention of Kevin when he signed the Will.
Therefore, this evidence supported the judge’s ruling to deem the Will valid and so grant her request for Letters of Administration.
Considerations for the future
Succession Law sets out how a Will must be executed for it to be a legally binding document.
A Will must be in writing and signed by the testator and two witnesses consecutively, in each other’s presence, and on every page of the document.
Position of the signatures on a Will may also impact whether it is considered valid. There have been cases where clauses/instructions appear in a Will after the testator’s signature. In some cases, those clauses have been found to be operative, and in some cases, not.
Ultimately that is a matter of construction of the Will.
Despite Succession Law now stating that due execution may be affected by signature before the end of the Will, this does not avoid arguments about the proper construction of a Will and whether it was the testamentary intention that clauses appearing after the signature were operative.
This was not an issue in regard to Kevin’s Will, as there were no clauses that followed Kevin’s signature.
Each matter is determined on its own facts and merit, therefore a similar case with slightly different circumstances may not have produced the same outcome.
This case is a good reminder that consulting an experienced estate planning lawyer can prevent such complications and ensure your wishes are upheld when completing your estate plan.
Attwood Marshall Lawyers has seen these types of issues arise frequently when people complete do-it-yourself and homemade Wills. Our estate planning lawyers draft Wills, day in and day out and know the requirements to ensure that the document is legally binding and that your instructions are drafted in a way that leaves no room for doubt.
Attwood Marshall Lawyers – experts in Wills and Estates
With one of Australia’s largest and most experienced Wills and Estates teams, we can help you with all your estate planning needs. Whether you have never written a Will, if you have a complex estate plan that you need to update, or if you want to take advantage of our secure strongroom to keep your legal documents safe, we can help.
Our estate planning lawyers understand that your Will is an incredibly personal document that should reflect your current wishes as life goes on. We are here to ensure that you preserve your wishes and protect your family and assets. If you need advice about your estate plan, please contact our Wills and Estates Department Manager Donna Tolley on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071.
If you are involved in a dispute over a Will, or you are acting as an executor of an estate and must defend a Will contest, our estate litigation lawyers practice exclusively in this area of law and have the state-specific knowledge and expertise you need to resolve the matter quickly and effectively. To discuss an estate dispute, please reach out to our Estate Litigation Department Manager, Amanda Heather, on her direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071 to make an appointment.
Our lawyers are available for appointments at all our office locations at Coolangatta, Robina Town Centre, Southport, Kingscliff, Brisbane, Sydney, and Melbourne
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