The Implications of Not Signing Your Will Properly

22 June 2018

Many of us know how important it is to take great care when asked to sign legal documents correctly, and it’s particularly important when it comes to Wills.

Over the years we have seen many Wills deemed invalid for no other reason than they weren’t signed properly.

You may wonder what exactly that means.

Legal Requirements for Signing a Will

Under Queensland Law, you need to follow specific guidelines when signing a Will. If it’s not signed properly it can lead to costly and protracted legal proceedings. It can also cause unnecessary grief and heartache for loved ones.

The following is required when signing a Will in Queensland:

  • The Will needs to be written with the same writing instrument (computer or pen) used for the whole document.
  • The Will must be signed by the person making it. It is recommended that the signature appears at the end of the Will, with initials at the foot of all other pages.
  • Two witnesses are required to witness the signature of the willmaker, and they will need to sign the Will in the same way described above.
  • The date of signing must be included in the Will.
  • The willmaker and witnesses should also use the same pen to ensure there is no confusion about whether all parties were present at the time of signing.

Additionally, for a Will to be valid in Australia you may need to follow other guidelines. These may vary from state to state, but one of the key requirements is that the willmaker must be at least 18 years old and understand what they are doing (have testamentary capacity).

What Happens if The Will is Invalid?

If your Will is invalid, the willmaker is said to have died intestate. Then the estate is distributed according to a pre-determined formula. Often this may result in certain family members receiving a defined percentage of your assets despite what the willmaker may have wished.

Although your family will receive some of your estate, the situation is more complicated and problematic than people realise. Your assets may end up in the ‘wrong hands’ or being allocated in a way you never expected or wanted.

For example:

  • If you’re married you may think your husband or wife will automatically get everything. In fact, this is only the case if your estate is under a certain value. Your children may have a right to part of your estate or, if you have no children then your parents, brothers and sisters who survive you may take a share.
  • If you are living as a couple, but are not married, you may be treated as a single person and a surviving partner may get nothing.
  • If you are a single person, you may want your estate divided in the proportions you wish among friends, relatives and charities of your choice. Even if you have no immediate family, it is still important to make a Will.

Without a Will, in certain circumstances, your estate may simply pass to the Government and you will have had no say in where your money or possessions will go. For example, if you die intestate and have no surviving relatives closer than cousins, the State Government may receive your estate.

Sometimes a Valid Will Isn’t Enough

Even if a Will is valid it may still be insufficient. The effectiveness of a Will depends on the Will drafting, contents, and level of expertise of the person who created it, as well as whether it is up to date.

What next?

You should seek advice from a suitably qualified legal professional to assist you in your Will and estate planning.

Contact Gill & Lane Solicitors to find out more.