Probate of Informal Wills in the time of Remote Witnessing

Wills in Queensland

Section 10 of the Succession Act, provides that a will must be in writing and signed by the testator in the presence of two witnesses. On 23 April 2020, the COVID-19 Emergency Response Act 2020 (Qld) came into force containing a regulation-making power where an Act (in this case the Succession Act) requires or permits the signing and witnessing of documents.

The Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020 (Qld) (”the regulation”) commenced on 15 May 2020 modifying the requirements or arrangements about signing or witnessing of wills. Under the regulation a document can be signed while a special witness observes in real time over video link. As protection against fraud, only a small group of special witnesses – including legal practitioners – can endorse documents.

Following the preparation of a paper version of the document, the testator must sign each page as the special witness observes via a video link to ensure that the testator is freely and willingly signing the document.

Once signed the testator must send either the actual document (or a scanned copy) to the special witness; who must sign each page and complete the special witness certificate confirming that the document was signed and witnessed using the modified arrangements, outlining the steps taken to verify the testator and the process followed for signing and witnessing the document.

The document is then returned to the testator or forwarded to other witnesses if they are also signing the document.

The Case

Re Sheehan [2021] QSC is an application for probate of an informal will or, a document that expresses the testamentary intention of its maker but the execution does not meet the formal requirements of the governing legislation.

Stan Sheehan, ( the deceased) died at the Gold Coast University Hospital on 1 December 2020. Having prepared wills on three occasions throughout his life, on 2 November 2020, Stan attempted to execute a will from his hospital bed under the regulation.

Despite the best efforts of Stan’s solicitor who had provided advice, taken instructions, prepared the Will and supervised its execution (including making audio-visual recordings of Stan’s understanding and intent) Stan failed to sign one of the pages of the will as well as an accompanying schedule. Although Stan’s solicitor alerted him of this he died without signing the page.

Because the instrument did not comply with the formal requirements for the making of a will, the persons named as executors applied for probate under s 18 of the Succession Act 1981 (Qld).

As the document was an informal Will the Court also had to consider whether Stan had the testamentary capacity to make such a Will. The applicants were also required to serve all 41 interested beneficiaries with the proceedings.

The Court held that there was a document that purported to embody the testamentary intentions of the deceased, it was accepted that the deceased intended the document to take immediate effect as his last will.

Following the execution of the will but before it was witnessed the solicitor told Stan that the will was valid; following the witnesses signing the document and the solicitor preparing a certificate confirming that it’s all been done properly Stan replied:

“… that’s great and, as you say, it is all being recorded anyway…”

Importantly, the clarity of the audiovisual recordings of the relevant meeting displayed that Stan had testamentary capacity; he understood what was being discussed, and gave precise instructions regarding the distribution of his assets in the event of his death.

The court granted probate of the document executed by Stan on 2 November 2020.

Ironically, there is no requirement to sign every page of a will under s 10 of the Succession Act. Therefore, had the document been signed by Stan in the physical presence of the witnesses, it would have been duly executed and there would have been no need for this application.

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