Wills and Issues – Deceased Estates

Wills and Issues – Deceased Estates

Firstly, the Executors of the Estate are named in the Will. There can be a number of Executors or only one named and they need to decide if they wish to act in their role as Executor or appoint a professional instead. If they do not appoint a professional then it may be preferable for just one of the Executors to take the lead.

As Executor, you should obtain a Death Certificate and start to arrange the funeral. Once the funeral has taken place, you should have more time to think about whether you want to get Probate for the estate yourself, or to engage someone to do this for you.

At Probate QLD Lawyers, our fixed fee Probate quotation does not include a percentage of the total value of the estate, this could save you thousands in fees.

What if there is no Will?

If there is no Will, you may have to apply to the Court for Letters of Administration to administer the estate. The estate is then distributed according to the rules of Intestacy (the term used for dying without leaving a Will).

Do all Wills go to Probate?

No, not all Wills go to Probate and in fact even if there is no Will, some estates will still need to go through the Probate process too.

Are the contents of a Will private?

Once a will is filed in the court it becomes a public document and anyone can view the will on payment of a small fee to the court.

How a Will must be executed?

A Will must be in writing and signed by the deceased (testator) or someone else, in the presence of and at the direction of the testator. The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.

At least 2 of the witnesses must attest and sign the Will in the presence of the testator, but not necessarily in the presence of each other. A Will need not have an attestation clause.

A person who can not see and attest that a testator has signed a document may not act as a witness to a Will.

Obtaining a copy of the Will

When a Will is made, the Executor/s are usually told where the Will is stored. If a Solicitor or other professional has drafted the Will, then it will normally be held with them.

Executors of the Will are entitled to obtain it from the Solicitor. There is no obligation for an Executor to use the services of a particular solicitor. It’s also possible that a bank may be storing the Will.

The Executors will have to prove who they say they are by providing proof of identity and perhaps evidence of the death (by showing the death certificate) before the Will will be released.

A beneficiary of a Will is also entitled to obtain a copy of the Will upon death of the deceased.

When the Grant has been issued the Will becomes a public document and anyone can apply to the Court to get a copy of the Will.

What if the will is damaged?

If a will shows any sign of damage or tampering we would need to file a further Affidavit to explain why.

What if I am a Witness to the Will?

If a disposition of property is made by a will to a person (the interested witness) who attests the execution of the will the disposition is void to the extent it concerns the interested witness or a person claiming under the interested witness. However if at least 2 of the people who attested the execution of the will are not interested witnesses; or all the persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition under the will and have the capacity to give the consent; or the court is satisfied that the testator knew and approved of the disposition and it was made freely and voluntarily by the testator.

Note that a disposition of property does not include a charge or direction for the payment of a debt; or appropriate remuneration to an executor, administrator, legal practitioner or other person for acting in relation to the administration of the testator’s estate.

What property can be disposed of in a Will?

A person may dispose in their Will any property to which the person is entitled at the time of their death. This applies whether or not the entitlement existed at the date of the making of the Will.

However, a person may not dispose in their Will of property of which the person is trustee at the time of the person’s death.

What should I do with items gifted in the Will to beneficiaries who have died?

Some gifts will simply lapse if the beneficiary died before they could benefit from the Will and the gift will join the ‘residue’ (anything left over after the gifts are given) of the estate. However, there are some complex rules around this so it is advisable to get expert legal advice on this point.

Execution of the will

The requirements for the due execution of the will have already been considered. It is important to ensure that the will has been executed in accordance with those requirements.

(a)        Signed.

(i)         by the signature of the testator.

(ii)        by a signature of the testator which does not accord with the name of the testator in the heading of the will.

(b)       Attestation

No attestation clause or an insufficient attestation clause has been used.

If an attestation clause has been used and its terms indicate due execution of the will, the attestation clause is accepted as prima facie evidence of due execution of the will.  If there is no attestation clause or its terms do not indicate due execution of the will, evidence will be required as to due execution. Evidence in the first instance is required of at least one of the subscribing witnesses. If it is not possible or practicable to obtain evidence from a subscribing witness or evidence from some other person present at the execution of the will, evidence must be produced of the inability to obtain such evidence. In such circumstances verification must be obtained of the handwriting of subscribing witnesses and any other circumstances which may raise a presumption in favour of the due execution of the will. In the event that none of the evidence referred to above is obtainable the court may presume due execution, if the will, on its face, appears to be properly executed.

The possibility of a beneficiary having witnessed the will

Although witnessing of the will by a beneficiary does not affect the validity of the will, the court requires affidavit evidence on the matter if the will on its face indicated such a possibility. The court is concerned to ensure that the matter has been clarified for distribution purposes since any benefit to a witnessing beneficiary is null and void except for the circumstances given in the Succession Act.

Section 18(2), Succession Act provides, inter alia, that a document that does not comply with the will execution requirements of s 10 may nonetheless be a valid will if the court is satisfied that it was intended to be or form part of the deceased person’s will.

(c)        Date

(i)  No date of execution appears on the will.

If the will is undated, evidence must be obtained to establish the date of execution as there may be other testamentary documents of the testator. If no specific date of execution can be established, execution of the document between definite dates should be sworn to by the attesting witnesses or any other person present at the execution of the will. Where no one can depose to the actual date of execution or the approximate date of execution, evidence would need to be given of searches made for any other will left by the testator.