Are Handwritten Wills Legal in Australia?
In early 2023, the children of late US singer Aretha Franklin were locked in legal battle over her Will.
The singer did not have a formal Will in place when she died in 2018, but in July of 2023, a Michigan Probate Court ruled that a handwritten Will found sandwiched between couch cushions in Franklin’s home after her death was valid.
Can the same be said for handwritten Wills in Australia? Can you make your own Will? Do you need a lawyer to make a Will?
In short – yes. Handwritten Wills are legally recognised in Australia, provided they comply with the legislative requirements outlined in the relevant state or territory's Wills Act.
However, it’s important to be aware the even a minor mistake when drafting your own Will can result in it being deemed invalid.
Common mistakes made when drafting a Will.
During my years working in Wills and Estate Planning, including at a national Wills and Probate firm, I’ve seen that one of the most common mistakes made when using the ‘do it yourself’ Will method is that the witnesses do not sign the Will correctly, or not at all. This can mean the Will is deemed an ‘informal Will’. If the Will is deemed ‘informal’, it is very likely your Estate will incur further legal fees to have Probate granted.
In other instances, the Will is deemed informal because it is drafted by a non-lawyer, or a lawyer is not present at the execution (signing) of the Will, resulting in some of the formalities of the Will not being met.
Informal Wills have difficulties in getting Probate granted by the Supreme Court.
The Supreme Court will only grant Probate if it is satisfied that the testator (Will maker) intended the document to be their last Will. The Supreme Court will look at any evidence relating to how the informal Will was signed, evidence of a person’s testamentary intentions (intention to make a Will), their capacity when executing (signing) the Will and evidence by way of Affidavit from the witnesses to the Will.
While you can make a Will by yourself, it is a good idea to get expert help.
The cost of having a lawyer make your Will is usually less than the cost to resolve issues with a Will that is not properly drafted.
At Murnane Legal, we believe that Estate Planning does not need to be complicated. We will explain everything in plain English and talk through your options so you can make informed decisions about your life and your family’s future.
Want to know more? You can call Mark directly for an obligation free chat: 0439 106 816.
DISCLAIMER: This article is provided for general information purposes only. It does not constitute specific legal advice or opinion. Although our aim is to provide you with as accurate information as possible, you should not act or rely upon the information in this article without seeking the advice of an experienced lawyer who specialises in the particular area of law relevant to your inquiry. Please do not to hesitate to contact Murnane Legal to make further inquiries or to make an appointment to discuss the specifics of your situation.
