TECHNOLOGY AND THE MECHANICS OF MODERN SUCCESSION LAW.

Australians embrace technology in nearly every aspect of our lives. However, when it comes to making a Will, there is an overwhelming need to comply with formal requirements in the Succession Act (Qld). In late 2017, the Queensland Supreme Court (QSC) delivered the highly-publicised decision of Re Nichol [2017] QSC 220 (‘Nichol’). This startling decision expanded the circumstances in which the courts may use a power of discretion to dispense with the rules and hold an informal Will valid. This decision proves the importance of making a valid formally signed Will to avoid your estate being involved in prolonged litigation after your death. Two days before mark Nichol’s death, his wife unfortunately separated from him. Immediately prior to committing suicide, Mark constructed, but did not send, a text message to his brother to act as a will. A recreation of this can be seen above.
Under this ‘text message Will’, Mark’s brother and nephew were set to inherit. Mark’s wife contested that the text message was not a will and accordingly, there was a total intestacy meaning Mark’s wife and son should inherit. The court had to determine if the message was in fact an ‘informal’ will.

Making a Formal Will

In order for a person to make a valid Will in Queensland, the document must follow the forma requirements of being in writing, signed by the Will-maker, witnessed by two independent people (unrelated to them) present at the same time. Despite being an inconvenience in a busy life, these requirements have a vital purpose. They ensure that the true intentions are contained in the Will and protect against any fraud, lack of capacity or undue influence or coercion.

 

Compliance with these requirements is not the only way in which a document can express testamentary intentions, but following these requirements provides the greatest certainty in achieving the outcome desired for transfer of an estate asset upon death.

Despite informal wills being accepted by the courts often, these cases confirm the vital need to obtain qualified legal advice from an estate practitioner to draft and organise proper execution of a formal Will. If you decide not to create a formal valid Will, you are leaving open the opportunity that their wishes will not be upheld. In effect, you are passing up the ability to use an array of clever and effective succession structures and drafting mechanisms available to maintain maximum benefits and asset protection strategies for the family. It was demonstrated in Nichol, that an estate will be involved in costly litigation over an extended period to seek a resolution. Given the estate in Nichol was modest, there was not much left for the beneficiaries to inherit after visiting the Supreme Court. We are all reminded of the importance of planning for the future by ensuring you set your wishes in unequivocal written and signed terms to provide absolute certainty.

 

There have been a number of other cases in which informal Wills have been upheld despite the lack of formality around the signing. However, every time a lack of formality occurs, there is always the cost of additional court costs to “prove” the Will.

 

Note during 2020, we have an extraordinary series of events arising from the Covid-19 pandemic throughout the world. It sharpens the mind when thinking about your personal succession strategy and how you can achieve an update.

 

There is currently draft legislation being prepared in Queensland that may broaden the formal witnessing requirements to possibly include web conferences and signing the document after identifying a person and watching them sign the Will document.

 

We are open for business 7 days a week and you can click on our website www.perspectivelaw.com to start your estate plan immediately. We will receive the basic details and can contact you straight away to organise a web meeting to confirm your instructions from the comfort of your home. We can send the documents by courier or express post and arrange a witness procedure. If you need any assistance with your estate planning, call us to discuss how we can help you with your Strategic Estate Plan.

 

 

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