Search

What happens to an unsigned will when the will-maker dies?

For a will to be considered valid, there are specific formalities that need to be complied with. Generally, the will has to be in writing and signed by the testator and witnessed by two independent adults.


However, the court has discretion to dispense with such requirements if it is satisfied that the will-maker intended the document to form the person’s will. Although this special power may not be exercised in all circumstances.


In the recent case of Re McNamara [2021] QSC, Mr McNamara and his wife engaged lawyers to prepare their wills. The draft documents were issued on 27 September 2019. They had several appointments with the lawyers to sign the will, but Mr McNamara pushed back the appointments on several occasions. On 25 July 2020, Mr McNamara passed away.


Mr McNamara had three children from his previous marriage. In the unexecuted will, Mr McNamara left his family home and 50% of the residue of the estate to his wife, the other 50% of the residue went to his three children. Mr McNamara expressed to a friend that the estate administration “would not go smoothly when he died”.


The court was not satisfied that Mr McNamara intended for the unexecuted will to have an operative effect. The court felt the reason for Mr McNamara’s delay and avoidance in executing the will was because he was “hesitate to perfect his choice to favour his wife relative to his children” and made the observation that “it is well known to the human condition that from time-to-time decisions involving a choice between conflicting loyalties are dealt with by being avoided.”


You need a very good reason for not signing a will


In the case of In the Estate of Sugars (Deceased) [2021] SASC, the deceased did not sign a draft will that was prepared eight months before her death as she was diagnosed with leukemia three weeks after receiving the draft will. The court was satisfied that the deceased intended the document to form her will because she spent most of the time in the hospital, and that she believed she would make a full recovery, so the execution of the will was not seen as urgent.


Lesson to be learned


Make the finalisation of your estate plan an absolute priority. It might be difficult to plan for blended families, but even an imperfect solution is still better than none at all. Leaving an unsigned will behind poses significant risks to your estate.


Shand Taylor Lawyers is highly experienced in estate planning.


If you require assistance with planning your estate, please contact a member of our wills and estates team for advice.


Brad Clark, Partner (07) 3307 4527 bclark@shandtaylor.com.au


Kaylie Bourke, Special Counsel (07) 3307 4548 kbourke@shandtaylor.com.au


Annie Xu, Solicitor (07) 3307 4550 axu@shandtaylor.com.au

60 views0 comments