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Australian Court shows relax in Formalities

The Supreme Court have dispensed with the need to sign and have witnessed a Will or an amendment to a Will where it can be shown that the testator’s intention was clear. While the Succession Act 1965 requires a Will to be signed by, or on behalf of, the testator in the presence of two witnesses amendments made in 2006 allow the Court to relax these requirements in certain circumstances. A recent case illustrated this power for the first time and the ruling is expected to have long term consequences. In this case the deceased had made out a valid Will in 1993 which had been properly executed but had stapled amendments to this document which had been signed but not witnessed. In addition, at a later time (which could not accurately be determined) the man had filled in a Will kit booklet but had not signed it. The Supreme Court were largely assisted in their decision by the family’s agreement that the Will kit most accurately reflected the deceased’s latest intentions as to how his estate should be distributed. If the case had been opposed the decision would have no doubt been much more difficult to reach and proceedings would have been prolonged and expensive. The family solicitor was able to give evidence that the deceased had intended to make a new Will and the family were able to confirm that the DIY kit had been completed in the man’s own handwriting The decision in this case means that many other documents may now be deemed to be valid Wills by the Australian Courts including perhaps an unsigned draft of a Will, handwritten notes made by a deceased or amendments written on a previously produced Will. This case is, however, unique to the Australian law and unlikely to be followed by English Courts. The circumstances of the case are very specific and, even with solid evidence of intention, the family could have been spared the expense of Supreme Court action if the man had ensured his last wishes were properly documented and attested.

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