Contesting a will? What You Need to Know First

When is a Will not a Will

March 2, 2017

In a recent case, Lindsay v McGrath, the Queensland Court of Appeal had to deal with a handwritten “will”. That is, the deceased wrote out in her handwriting directions for how her estate was to be distributed. The problem was that the document was not a formal will; whilst it was signed, it had not been witnessed and there were other issues which went to validity. Also, the deceased used the document to criticise family members and seemed to have made various amendments to it over time. Under the law, the Court has to be satisfied that the document was intended by the deceased to be her will and not simply notes for herself as to how she might want her estate distributed. The Court took into account other evidence such as promises made by the deceased to various people. The Court concluded that the document did not meet the criteria; that is it was not intended to be the deceased final will without further amendment to it.

The lesson here is that if you want a Will, get a solicitor to prepare it to ensure it is done properly. Do it yourself attempts often (as in this case) end in failure.

The above commentary is general and depends on the individual circumstances. It should not be relied on without specific legal advice.

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