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Wills & Succession, noticeboard, September 2021, Perils of failing to execute a will properly

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Despite the best laid plans of the solicitors and testator in Re Sheehan [2021] QSC 89, Willem Kilian, co-author of Australian Succession Law, explains below the fall out of non-compliance with the Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulation 2020 (Qld).

Consequent upon the commencement of the COVID 19 Emergency Response Act 2020 (Qld), the Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Regulation 2020 (Qld) was promulgated on 15 May 2020; later renamed the Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulation 2020 (Qld).

The regulations made provision for witnesses to be present via audio visual link, provided the signing or witnessing of the will is carried out in accordance with the requirements of reg 17, which stated:
(1)    A document may be witnessed by audio visual link only if-
(a)    if applicable, the witness observes the signatory direct the substitute signatory to sign the document; and
(b)    the audio visual link enables the witness to be satisfied, by the sounds and images made by the link, that the signatory or substitute signatory is signing the document; and 
(c)    the witness forms the satisfaction under paragraph (b) in real time; and
(d)    the signatory or substitute signatory signs each page of the document; and
(e)    the witness is satisfied that the signatory is freely and voluntarily signing the document or directing the substitute signatory to sign the document.
(2) Subsection (1)(d) does not apply to an affidavit or a declaration.

In Re Sheehan [2021] QSC 89, a will was executed utilising the provisions discussed above.

Unfortunately, the testator omitted to sign one of the pages of the will as well as an accompanying schedule to the will. This contravened reg 17(1)(d), which requires each page to be signed.
Consequently, the Will did not comply with the statutory requirements and an application under s 18 of the Succession Act 1981 (Qld), to have the Will admitted to probate as an informal will, had to be made. The irony, as explained by the author, was pointed out by the counsel for the applicants; that there is no requirement under s 10 of the Succession Act to sign every page of a will and had the instrument in question been signed by the deceased in the usual way in the physical presence of the witnesses, it would have been duly executed. 

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