Do it yourself then get a JP to witness it? Getting your legal advice on Facebook? Please don’t.
A comment that regularly pops up in community groups goes something like this:
“Just DIY your Will and get a JP to witness it.”
So. Much. Wrong.
Well, technically, there are two separate things going on here.
You absolutely can make your own Will.
And a JP can witness a Will.
But having a JP witness your signature does not magically turn a DIY Will into a good Will, or even fix problems with the Will itself.
If you’re in Queensland, there are specific legal requirements for how a Will must be signed and witnessed. There are also plenty of other things that need to be considered when deciding what your Will should actually say.
Let’s unpack it.
Can a JP witness my Will in Queensland?
Yes. A Justice of the Peace can be one of the people who witnesses your Will. But you cannot simply sign your Will in front of one JP and call it done.
Under Queensland law, your signature must be made or acknowledged in the presence of at least two witnesses who are present at the same time. At least two witnesses must also attest and sign the Will in your presence.
The witnesses do not generally need to be lawyers, JPs, or other qualified professionals.
So if someone tells you, “Get a JP to witness your Will and you’re sorted.”
That advice is incomplete. There is a lot more to making a Will than getting the witnessing ceremony right.
Can I make my own Will in Queensland?
Yes. There is no rule that says you must pay a lawyer to prepare your Will. You can make your own Will if you choose to. The bigger question is:
Do you know what your Will needs to say to achieve what you actually want?
That’s where things can get complicated. A Will isn't simply a form where you fill in your name, choose some beneficiaries, appoint an executor, and sign at the bottom.
Your Will forms part of your overall estate plan.The right structure depends on things such as:
who you want to benefit from your estate
whether you have children
whether your children are under 18
whether you have a blended family
whether you have a spouse or de facto partner
whether you have more than one spouse
how your assets are owned
whether you own property jointly or individually
whether you have a family trust
whether you have a company
whether you have superannuation
whether you have life insurance
whether you want to establish a testamentary discretionary trust
who you want to appoint as your executor
who you want to care for your children if you die
whether there are family circumstances that could create a risk of a claim against your estate.
A DIY Will might not ask you to think about any of those things. Your estate plan should.
What can go wrong with a DIY Will?
There are two separate risks.
1. The Will may not be executed correctly
Queensland law sets out requirements for signing and witnessing a Will. If those requirements aren't followed, the Will may not be formally valid.
The Queensland Supreme Court has power in some circumstances to dispense with the usual execution requirements. That does not mean an incorrectly signed Will is simply “fine”. It can mean the executor needs to make an application to the Court to have the document recognised as a Will. That can mean additional legal costs, delay, uncertainty, and stress for your loved ones.
And let's be honest. Your family probably has better things to spend their time and money on after you die.
2. The Will may be valid but still be a bad Will
This is the part that often gets missed. A Will can be properly signed and witnessed and still fail to achieve what you intended.
For example, you might have:
accidentally left someone out
used the wrong legal terminology
made a gift that doesn't work as intended
failed to account for an asset that doesn't form part of your estate
misunderstood how your superannuation will be dealt with
failed to consider a testamentary trust where one may be appropriate
appointed an executor who isn't suitable for the role
failed to make appropriate arrangements for your minor children
created unintended consequences for a blended family
overlooked the possibility of a Family Provision Application
included instructions that don't belong in your Will.
A JP witnessing your signature won't identify these issues for you.
What does a JP actually do when witnessing a Will?
A witness witnesses the signing of the document. They are not there to review your estate plan. They are not there to check whether your gifts work. They are not there to advise you about your executor. They are not there to tell you whether you should have a testamentary discretionary trust. They are not there to review your superannuation strategy. And they are not there to tell you whether your Will adequately protects your children.
Witnessing and legal advice are two completely different things.
A JP can perform the witnessing role without providing you with legal advice about the document.
“But my Will is really simple.”
We hear this one a lot. You might think:
“Everything is going to my spouse, then to my kids. It's straightforward.”
Maybe it is. Or maybe your spouse owns the family home jointly with you, your superannuation sits outside your estate, you have children from a previous relationship, and you have a family trust holding significant assets.
Suddenly, the Will is only one part of the picture. That's why estate planning starts with understanding your circumstances and goals before deciding what documents and structures you need.
A Will is only one part of your estate plan
Your Will deals with assets that form part of your estate. It doesn't automatically control everything you own. Your estate plan may also need to consider:
Superannuation
Your superannuation does not automatically pass under your Will. The way your superannuation death benefit is dealt with needs to be considered as part of your overall estate planning strategy.
Jointly owned assets
The way an asset is owned can affect what happens to it when you die.
Trusts and companies
Assets held through trusts or companies may not form part of your personal estate in the same way as assets you own personally.
Life insurance
Your life insurance arrangements may also need to be considered alongside your Will and superannuation strategy.
Your Enduring Power of Attorney
Your estate plan isn't only about what happens when you die. An Enduring Power of Attorney deals with decision-making during your lifetime if you lose capacity.
Your Advance Health Directive
An Advance Health Directive can record your decisions about future healthcare while you have decision-making capacity.
That's why we talk about estate planning, rather than simply “getting a Will”.
So, do you need a lawyer to make a Will?
You don't legally have to use a lawyer to make a Will. You can make your own. You can also have a JP witness it.
But if you want legal advice about what your Will should say, how it fits into your overall estate plan, and whether the structure you've chosen is appropriate for your circumstances, that's where a lawyer comes in.
And if you're dealing with a more complex family or asset structure, getting advice before you sign anything can be particularly important.
What about those Facebook comments?
This is the part that inspired this blog. Someone asks:
“Do I really need a lawyer for my Will?”
And someone replies:
“Nope. Just DIY it and get a JP to witness it.”
Please remember that a Facebook comment is not legal advice. The person giving the advice doesn't know:
your family circumstances
your assets
your liabilities
how your assets are owned
your superannuation arrangements
your relationships
your wishes
your concerns about your children's future
or what you're actually trying to achieve.
They also don't know whether the DIY Will you've prepared says what you think it says.
The takeaway
If you want to make a DIY Will, that's your choice. If you want a JP to witness your Will, that's also an option, provided the witnessing requirements are properly followed.
Just don't confuse witnessing your Will with getting legal advice about your Will.
A JP can witness your signature. A lawyer can advise you about your Will and your estate plan. Those are different jobs.
And when you're making a plan for what happens to everything you've spent your life building, “Someone on Facebook said it would be fine” probably isn't the standard you want to work to.
C’ya, Facebook legal advice.
If you're ready to get proper advice about your Will and estate plan, book our heart-to-heart initial consult and let's work out what your family actually needs.