Chloe Wilson, Wills and Estates Lawyer at Attwood Marshall Lawyers, explores a recent Queensland Supreme Court decision that invalidated a Will due to cognitive impairment, highlighting the risks of do-it-yourself (DIY) Wills and the importance of having an expert estate planning solicitor draft your Will.
Drawing an end to a lengthy family dispute that could have been avoided, a Queensland court has thrown out a do-it-yourself Will after finding that the testator was not of sound mind when he signed it.
The case serves as a reminder of the pitfalls of using a DIY Will kit. These kits, which you can purchase from the Post Office, newsagents or online, may appear a simple and affordable option, but they lack the depth of legal expertise necessary to safeguard your assets, document your wishes, and minimise potential disputes.
Investing in estate planning documents prepared by a lawyer now can provide peace of mind and ultimately save your loved ones from going through a very costly and lengthy legal process in the future.
This family dispute took about two years from the date of death to resolve – which was no doubt an incredibly difficult and upsetting time for everyone involved.
The Case: Sorati v Sorati [2025] QSC 14
In a ruling handed down on 31 January 2025, Justice Peter Callaghan dismissed the plaintiff’s claim over the validity of a Will made in August 2021, after he could not be satisfied of the testator’s cognitive capacity.
At the heart of the dispute was a Will that Renato Sorati signed when he was 94 years old, which had been prepared from a “Will kit.” Under this 2021 Will, his two sons would each receive a special gift of $50,000 with the remainder of his estate going to his wife, Robyn.
This was in sharp contrast to a Will that Renato had made with his solicitors in 2017, which provided for two different scenarios:
- If Robyn survived Renato, his two sons would receive his interest in a Hervey Bay property as well as some investments, with the rest of the estate going to Robyn.
- If Robyn predeceased Renato, then the two sons would receive the same property but Robyn’s three daughters from a previous marriage would share the proceeds of a sale of another Hervey Bay property, and the remainder of the estate would be distributed to Renato’s seven grandchildren.
Renato died two years after signing the 2021 Will, on 17 January 2023. The sons challenged the validity of the 2021 Will, and the court agreed with their objections, ruling that the 2017 Will revoked all other Wills.
The DIY Will had been prepared with three witnesses present: Robyn and two other women, one of whom was a justice of the peace and the other a good friend of Robyn’s for more than 20 years.
The judge cited evidence of Renato’s reluctance and hesitancy to sign the Will, as well as medical and observational evidence of Renato’s loss of concentration, memory loss, aggressive behaviours and declining cognition between May 2021 and January 2022 (when his GP wrote a medical certificate declaring that he lacked decision-making capacity.)
The problem for the court was that his cognitive decline would have been in flux. The judge had to ascertain his capacity on the day he signed the Will, which was 5 August 2021.
Key takeaways
This case underscores how important it is to ensure that a Will-maker has testamentary capacity and understands the nature and extent of their estate when drafting a Will.
Justice Callaghan said that the court must be satisfied that when he signed the document, Renato:
- Was aware and appreciated the significance of the act in the law upon which he was about to embark,
- Was aware, at least in general terms, of the nature, extent and value of his estate,
- Was aware of those who may reasonably be thought to have a claim upon his estate, and
- Had the ability – uncompromised by any unsoundness of mind – to evaluate and discriminate between the respective strengths of those claims.
The judge said that despite some witnesses believing that Renato was “mentally sharp” on the day he signed the 2021 Will, it was important to consider that the “person who would substantially benefit from the drawing of the Will (Robyn) had both the motive and the opportunity to exercise undue influence on him.”
Justice Callaghan said it was significant that the use of a “Will kit” was “such a sharp departure from Renato’s standard method (involving a solicitor) of preparing a Will.”
Of particular note was how the 2021 Will left out “explicit and important” instructions that Renato had expressed to witnesses on that same day. Renato was also told (and believed) that if he did not sign the DIY Will then he would die intestate and that the government could take over his estate. Renato seemed to have forgotten about his 2017 Will and the rights of his adult children, which he had understood previously.
“Given the degree of control he liked to exercise when functioning at full capacity, these failures of understanding can be attributed to his general cognitive decline,” Justice Callaghan said.
If Renato had engaged an experienced estate planning lawyer instead of signing a DIY Will, the lawyer would have followed a specific process to make sure their client had testamentary capacity and would have kept extensive file notes documenting the instructions give, and circumstances in which the new Will was created. That way, if the Will is challenged down the track, there are trusted witnesses and a documented process that a court can refer to when seeking to establish the validity of the Will.
A lawyer will assess capacity as an independent person, something your neighbour or friend cannot do. A lawyer can also recommend a medical capacity assessment for the client, if necessary.
The dangers of DIY Wills
Challenges to the validity of a Will are very common where DIY Wills are concerned.
Read more: Challenging a Will based on mental capacity.
In Australia, there are minimum legal requirements for a Will to be considered valid.
Briefly, these requirements include:
- A Will must revoke all previous Wills,
- It should appoint a personal representative or executor,
- It must clearly outline the deceased’s assets and specify how the estate is to be distributed,
- If applicable, it should include alternative provisions in case an intended beneficiary predeceases the Will-maker,
- The Will must be legible, properly signed by the Will-maker and witnessed by two independent adult witnesses who are not beneficiaries,
- There are also strict technical requirements regarding how and when the Will is signed in the presence of witnesses.
Although these may seem like straightforward requirements, a significant number of “DIY Wills” are deemed invalid for not meeting these basic legal standards.
In some cases, “DIY Wills” are so ambiguous or poorly drafted that the assistance of a court is required to determine their intended meaning. There is also the risk that a “DIY Will” may be found completely invalid, leading a court to uphold a previous Will. If no valid Will exists, the court will then declare the deceased to have died intestate and appoint an administrator to manage the estate, which may result in assets being distributed in a way that does not align with the deceased’s wishes.
Read more: Ambiguous Wills and the trouble they cause
Attwood Marshall Lawyers – experienced estate planning lawyers who will help you plan for the future and preserve your wishes
Wills are the major component for later life planning, in conjunction with Enduring Powers of Attorney and Advance Health Directives. These powerful tools allow individuals to plan for the future, preserve their wishes, and protect their hard-earned assets.
Seeking advice from a lawyer experienced in Wills and Estates ensures that your Will is drafted to consider your unique family circumstances and reflects your wishes.
Attwood Marshall Lawyers boasts a specialised team who practice exclusively in estate litigation, estate planning, and estate administration.
Our lawyers take the time to connect with each client to ensure they understand what matters most to them and to help them achieve their estate planning goals.
For advice on your estate planning please contact our Department Manager, Donna Tolley, on direct line (07) 5506 8241 or by email on dtolley@attwoodmarshall.com.au to arrange an appointment.
Our estate planning lawyers are available for appointments at all our conveniently located offices at Coolangatta, Southport, Robina, Kingscliff, Brisbane, Sydney and Melbourne.
