Homemade wills and will kits are popular for good reasons. A 2023 Queensland Supreme Court decision shows how a single blank space in a will kit can change who inherits.
Will kits are cheap, easy to find at a newsagent or online and can be filled in at the kitchen table. For many people, a homemade will feels like a sensible way to get something in place. What could go wrong?
One Queensland case gives a clear answer: a single blank box.
Can I write my own will?
In general, the law does not require a lawyer to prepare a will. Whether a homemade will is valid depends on whether it meets the formal requirements of the state it is made in and whether it clearly says what the will-maker intends.
Queensland
Under the Succession Act 1981 (Qld), a will must be in writing and signed by the will-maker or by someone else in their presence and at their direction. The signature must be made or acknowledged in the presence of two or more witnesses present at the same time, and at least two witnesses must sign in the will-maker’s presence. If a document does not meet these requirements, the Supreme Court may still treat it as a will if it is satisfied the person intended it to be their will. That involves a court application, with the cost and delay that come with it.
New South Wales
Under the Succession Act 2006 (NSW), a will must be in writing and signed by the will-maker, or by another person in their presence and at their direction. The signature must be made or acknowledged in the presence of two or more witnesses present at the same time, and at least two of those witnesses must sign in the will-maker’s presence. If a document does not meet these requirements, the Supreme Court of New South Wales may still treat it as a will if it is satisfied the person intended it to be their will. That involves a court application, with the cost and delay that come with it.
Signing a homemade will correctly is only the first step. The Queensland case below involved a will kit that had been signed and was treated as a valid will. The problem was what the will did not say.
What happened in Bain v Demarchi?
In Bain v Demarchi [2023] QSC 199, a man made his will using a will kit. The document itself was not complicated. He named his mother as the sole beneficiary, so everything was to go to her.
The kit included a standard survivorship clause. In plain terms, the clause said a beneficiary must outlive the will-maker by a set number of days to inherit. The kit left a blank for that number, and he never filled it in.
He died in December 2022, and his mother died 13 days later.
Why did 13 days matter?
In Queensland, the Succession Act 1981 (Qld) sets a default rule: if a beneficiary dies within 30 days after the will-maker, the will takes effect as if the beneficiary had died first, unless a contrary intention appears in the will.
His mother outlived him, but only by 13 days, which is short of the 30.
His mother’s husband argued that the empty blank meant something. He said that by leaving it empty, the will-maker must have meant his mother only had to outlive him by any length of time at all. On that reading, 13 days would have been enough.
The court did not accept that argument. Justice Crow found that leaving the clause blank could not be read as an intention in the will not to apply the 30-day rule. In his Honour’s words:
“In my view, such a step would amount to speculation.”
The statutory rule applied and the mother did not take the gift.
Where did the estate go?
Because the mother was treated as if she had died before her son, the gift to her failed, and the will did not name anyone else to inherit. The man had no spouse and no children, so his estate passed under the intestacy rules to his brother. Those rules apply when there is no valid will, or when a will does not deal with all of a person’s property. The court’s orders reflect that outcome.
For more on how those rules work, see our article on what happens when someone dies without a will.
Is a homemade will a bad idea?
The lesson is not “will kits are bad”. The point is subtler than that. The man knew who he wanted to benefit, and he wrote it down. The problem was that the form asked a question he did not answer, and the law answered it for him.
Well-drafted wills usually deal with situations nobody likes to think about:
- What if my beneficiary dies shortly after I do?
- What if they die before me?
- Who should inherit instead?
The last question matters most. A professionally prepared will would usually name a backup beneficiary, known as a “gift-over”, so the estate still has somewhere to go if the first choice cannot inherit. It is a short clause that can prevent a lot of heartache and uncertainty.
What gaps can a homemade will leave?
This case is a reminder that the law fills gaps with default rules. Those rules are sensible in general, but they do not know your family. A blank space, an unclear phrase or a missing backup plan can mean an estate passes in a way the will-maker never had in mind. In some cases, it ends up in court, with the cost and stress that come with that.
Closing those gaps is a routine part of wills and estate planning. A will also rarely stands alone. It is usually one of the three documents most estate plans start with.
Does the same 30-day rule apply in New South Wales?
New South Wales has its own survivorship rule in the Succession Act 2006 (NSW). Under that rule, a person who is left property in a will must survive the will-maker by 30 days to inherit, unless the will shows a contrary intention. If the beneficiary dies within 30 days, the will takes effect as if the beneficiary had died before the will-maker.
Bain v Demarchi is a decision of the Supreme Court of Queensland, and it decided the question under the Queensland Act. A court in New South Wales would decide how a blank survivorship clause affects a New South Wales will by applying the Succession Act 2006 (NSW) to the words of that will. For anyone in New South Wales with a will kit, the practical point is the same one: check that every blank in the survivorship clause is filled in, and that the will names who should inherit if the first beneficiary cannot.
How our team can help
If you have made a homemade will or used a will kit, or you are not sure your will covers the “what ifs”, our team can review it with you. Often only a few changes are needed to make sure the will does what you intend. Our team advises clients in Queensland and New South Wales.
Frequently asked questions
QCan I write my own will in Queensland or New South Wales?
Queensland – A homemade will can be valid in Queensland if it meets the formal requirements of the Succession Act 1981 (Qld), including being in writing, signed by the will-maker and witnessed by two witnesses present at the same time. Being valid is not the same as working as intended. A valid will can still leave gaps that the law fills with default rules.
New South Wales – A homemade will can be valid in New South Wales if it meets the formal requirements of the Succession Act 2006 (NSW), including being in writing, signed by the will-maker and witnessed by two witnesses present at the same time. Being valid is not the same as working as intended. A valid will can still leave gaps that the law fills with default rules.
QWhat is a survivorship clause in a will?
A survivorship clause sets how long a beneficiary must outlive the will-maker in order to inherit. If the beneficiary dies within that period, the gift is usually treated as if they had died first, and it passes to whoever the will names next, if anyone.
QWhat happens if a beneficiary dies shortly after the will-maker?
Queensland – If the beneficiary dies within 30 days after the will-maker, the Succession Act 1981 (Qld) treats the will as if the beneficiary had died first, unless a contrary intention appears in the will. If the will names no backup beneficiary, that property may pass under the intestacy rules.
New South Wales – If the beneficiary dies within 30 days after the will-maker, the Succession Act 2006 (NSW) treats the will as if the beneficiary had died first, unless the will shows a contrary intention. If the will names no backup beneficiary, that property may pass under the intestacy rules.
QShould I have my will kit reviewed by a lawyer?
A review can check that the will has been signed and witnessed correctly, that no blanks are left, and that it says who inherits if a beneficiary dies before you or shortly after you. Whether changes are needed depends on your circumstances.
Disclaimer: The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice. Readers should seek legal advice about their specific circumstances.
