Do you need a lawyer to prepare your will?

The short answer is no, a person can prepare their own Will, but it is not always a good thing to try to do it yourself.  There are many things which can go wrong if the Will is not properly drawn up, for example, by not satisfying the formal requirements for Wills or leaving partial intestacies (ie where part of the estate is not dealt with).  Another common mistake is to include in Wills things that are not capable of being given by a Will (for example, assets owned by a company or held in a trust). 

Some of those things were considered in the recent decision of Re: Jacob Albert Omerod (deceased) [2022] QSC 98.  This matter involved a “home made” Will which was not properly executed and which left a partial intestacy.  As a result, an application was needed to be made to the Supreme Court for orders dispensing with the execution requirements for the Will, under section 18 of the Succession Act 1981. 

Briefly, the formal parts for execution of a Will are set out in section 10 of the Succession Act, providing that the Will must be:

  1. In writing;
  2. Signed by the Will maker or someone else in the presence of and at the direction of the Will maker;
  3. Signed in the presence of two or more witnesses present at the same time;
  4. Signed by the Will maker with the intention of executing the Will.

Commonly with home made Wills, there are deficiencies in some shape or form with the execution of the document.  In the matter referred to, the deficiency was that the Will maker had not signed the Will, even though it had been witnessed.  Section 18 allows the court – if it is satisfied that the person intended it to be their Will (or an alternation) to dispense with one or more of the formal requirements. 

In the matter referred to, the court was satisfied that the Will maker intended the Will to take effect as his last Will based on the evidence of its creation and its signing by the witnesses.

While it is good that these things can often be cured, the costs involved in rectifying these matters are quite significant.  The evidence to be put before the court can be quite extensive depending on the circumstances, and it is possible that the costs involved would be well in excess of $10,000 in even a relatively simply matter, and potentially many times that amount if it is contested. 

As a result, while it is possible for a person to draw and have properly signed their own Will, attempting to do so can lead to serious defects not only in the terms of the Will putting into effect their wishes, but also in respect of its execution.

For all enquiries in relation to Wills and estate planning, please contact Peter Muller at peterm@qbmlaw.com.au or Jessica Murray jessicam@qbmlaw.com.au