When it comes to making a will formalities are important

In the Estate of Jansen [2020] ACTSC 130 Ronald Jansen’s wife Cheryl and sister Sonja sought a declaration that an undated document signed by Ronald constitutes his Will although it does not meet the formal requirements of the Wills Act.

Additionally, that probate in relation to the Will be granted to Cheryl and Sonja.

In early September 2018, Ronald was diagnosed with cancer. Soon after the diagnosis, he told Sonja he wished to make his will. Ronald dictated his wishes to Sonja telling her that he would call his solicitor after he left the hospital. The solicitor prepared and sent the draft will to Sonja by post.

On 23 October 2018 Sonja visited Ronald at his home as Cheryl had arranged a birthday party for her. Ronald asked her if she had the will because he needed to sign it. Ronald read it, said that it looked okay and then signed the will in her presence. No one else was present.

Sonja left the room with the signed document and had a guest at the party sign it; before changing their mind as they did not want to take sides between Sonja and Cheryl. However, another guest at the party signed each page.

On 28 October 2018 when Sonja visited Ronald in Hospital, a fellow visitor signed the will but not in the presence of Ronald.

Ronald died on 5 November 2018.

The Decision

The document is in the conventional form of a will but neither witness was present when it was actually signed. It is for that reason that an order under s 11A was sought.

Where a document expressing testamentary intention has been formally executed by the testator and attested to by the witnesses as a will, all in the presence of each there is a presumption that it is the last will and testament of the testator.

Conversely where a document has not been formally executed and attested the presumption that it is the last will and testament of the testator does not arise.

In this case, Cheryl and Sonja must provide evidence of search to ensure that there is not a will which embodies the testator’s intentions as recorded in the informal or unexecuted document.

The court held the statutory requirements for the making of an order under s11A of the Wills Act are satisfied; the document clearly purports to state Ronalds testamentary intentions and was clearly intended that it constitute his will.

Further, a search has been made and there is no later will or document purporting to contain his testamentary intentions.

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