In estate planning, handwritten Wills, also known as holographic Wills, present unique challenges when it comes to contestation. Whilst these documents may seem straightforward, they often lead to complex legal disputes. This article considers the intricacies of contesting handwritten Wills, exploring the grounds for contestation, the legal process involved, and the potential outcomes.
If you think that a handwritten Will is questionable or if handwritten changes have unfairly left you out of a Will, consult with one of our experienced Will Dispute Lawyers today.
Understanding Handwritten Wills
Handwritten wills are entirely composed and signed by the testator (the person making the Will) using their own handwriting. In Queensland and other parts of Australia, these Wills can be legally recognised if they meet certain criteria. However, their informal nature often makes them more susceptible to challenges.
Under the Succession Act 1981 (Qld), a handwritten Will can be valid if it meets the following requirements:
- It must be in writing.
- It must be signed by the testator.
- The signature must be witnessed by two people who are present at the same time.
- The witnesses are required to sign the Will while the testator is present.
However, many handwritten Wills fail to meet all these criteria, leading to potential invalidity or contestation.
Grounds for Contesting a Handwritten Will
Contesting a handwritten Will involves challenging its validity or the adequacy of provisions made for beneficiaries. The main reasons for challenging a Will are as follows:
Lack of Testamentary Capacity
One of the fundamental requirements for any Will to be valid is that the testator must have had testamentary capacity when creating it. This means they must have understood:
- The nature and implications of making a Will
- The extent of their property
- The claims of potential beneficiaries
With handwritten Wills, questions of capacity are often more pronounced, especially if the Will was created without legal guidance or during illness.
Undue Influence
Handwritten Wills are particularly vulnerable to claims of undue influence. This occurs when someone exerts pressure on the testator, leading them to make decisions that don’t reflect their true wishes. The informal nature of handwritten Wills can make it easier for interested parties to influence the testator improperly.
Lack of Proper Execution
Many handwritten Wills fail to meet the formal requirements for execution. Common issues include:
- Lack of witnesses
- Improper witnessing procedures
- Unclear or ambiguous language
These formal defects can render the Will invalid or open to interpretation.
Fraud or Forgery
Handwritten Wills are more susceptible to allegations of fraud or forgery. Without the safeguards of formal Will creation processes, it can be challenging to verify the authenticity of the document.
Family Provision Claims
Under the Succession Act 1981 (Qld), certain eligible individuals can contest the terms of the Will by making family provision claims if they believe they were unfairly left out or inadequately provided for. This ground for contestation applies to all Wills, including handwritten ones.
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The Legal Process of Contesting a Handwritten Will
Contesting a handwritten Will involves several steps:
- Obtaining Legal Advice: The first step is to consult an experienced Will Dispute Lawyer, such as ours. We can evaluate the validity of the potential claim and recommend the most effective course of action.
- Initiating a Claim: If there are valid grounds for contestation, we will initiate a claim by lodging the necessary legal documents.
- Mediation: In some cases, the court may require mediation before proceeding to trial. This process allows parties to attempt to reach a settlement.
- Court Proceedings: If mediation fails or is not required, the matter proceeds to court. Both parties submit their evidence and arguments to the judge.
- Judgment and Appeals: After the court reaches a decision, a judgment is handed down. Dissatisfied parties may have the right to appeal within a designated period.
Challenges Specific to Handwritten Wills
Contesting a handwritten Will presents unique challenges:
Interpretation Issues
Handwritten Wills often lack the precise legal language found in professionally drafted Wills. This can cause confusion and multiple interpretations of what the testator intended.
Proving Authenticity
Confirming the validity of a handwritten Will can be challenging. Handwriting experts may need to be engaged to confirm that the Will was indeed written by the testator.
Incomplete Information
Handwritten Wills frequently omit crucial details or fail to address all aspects of the estate, leading to disputes over the distribution of assets not explicitly mentioned.
Amendments and Alterations
Handwritten changes to a Will are particularly problematic. As per Australian law, any alterations made after the Will’s execution must be properly executed and witnessed. Simply crossing out or adding text by hand may not be legally binding and can lead to confusion and contestation.
Case in Point: Re Thomas [2023] VSC 344
The recent case of Re Thomas [2023] VSC 344 illustrates the dangers of improperly executed changes to a Will. In this instance, the testator had crossed out beneficiary names on his original Will without properly executing these changes. The court ruled that these alterations effectively revoked the entire Will, resulting in the estate being distributed according to intestacy laws – likely against the testator’s wishes.
How ROC Legal Can Help
Given the intricate nature of contesting handwritten Wills, our experienced Will Dispute Lawyers at ROC Legal can help. As specialists in this complex area of law, we offer a range of services:
- Expert Analysis: We thoroughly review handwritten Wills to determine their validity under Queensland law, identifying potential issues that may others may miss.
- Strategic Claim Evaluation: We assess the strength of potential claims, including grounds for contestation and likelihood of success, using precedent and legal standards.
- Guidance Through Contestation: We support clients throughout the contestation process, from initial consultations to court proceedings, keeping them informed and prepared.
- Skilled Representation: We offer strong representation in mediation and court, leveraging our negotiation skills for settlements and our litigation expertise for court advocacy.
- Evidence and Expert Engagement: We collaborate with handwriting experts and gather relevant medical evidence, managing the process of obtaining professional opinions.
- Sensitive Family Issues: We handle Will disputes with tact and discretion, addressing both legal and emotional aspects of complex family dynamics.
- Ongoing Support: We offer continued assistance with estate administration, ensuring proper implementation of dispute resolutions.
Conclusion
Although legally recognised, handwritten Wills are especially prone to challenges because of their informal nature. Issues such as questionable validity, potential undue influence, or improper execution are common grounds for contestation. The Re Thomas case serves as a potent example of how handwritten alterations can lead to the invalidation of an entire Will.
If you’re considering contesting a handwritten Will, don’t hesitate to talk to our expert Will Dispute Lawyers today. We will analyse the document’s validity, assess the strength of your claim, and guide you through the contestation process. We are committed to safeguarding your interests and ensuring the testator’s genuine intentions are upheld. However, if you think handwritten changes have unfairly left you out of a Will, we will devise strategic legal actions to help you pursue a fair share of the inheritance.
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