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15 December 2011 Is your will valid?

By Phillip Briffa, Solicitor

Prescribed requirements

It is important that your will is written and executed to comply with the requirements as prescribed under the Succession Act 2006 (the Act) .

Essentially the requirements of a valid will are set out in Section 6 of the Act.  A will is generally invalid unless:

  • it is in writing, either typed or handwritten; and
  • it is signed by the testator/ testatrix (Will-Maker) or by some other person in the presence of and at the direction of the Will-Maker; and
  • the Will-Maker's signature is made or acknowledged in the presence of two or more witnesses, present at the same time; and
  • at least 2 of those witnesses attest (witness) and sign the will in the presence of the Will-Maker (but not necessarily in the presence of each other); and
  • the signature of the Will-Maker or of the other person signing at the direction of, and in the presence of the Will-Maker must be made with the intention of executing the will.
Witnessing a will

Common misconceptions concern the correct procedure for witnessing a will. Some misconceptions are listed and explained below:

  • A will is invalid if it is not signed at the bottom of each page.

No, it is not essential that a will is signed at the bottom of each page. However, it is prudent practice for the Will-Maker and the 2 witnesses to sign the bottom of each page. This prevents unauthorised tampering with the will by removal or insertion of pages.

  • A will must have an attestation clause, otherwise it is invalid.

Again this is not true, an attestation clause is not essential per se, however, it is again considered prudent practice for a will to contain an attestation clause. This assists with proving the Will-Makers capacity and intention if the will is ever challenged in court.

  • A blind person can witness a will.

No, a person who is unable to see and attest that a Will-Maker has signed a document may not act as a witness to a will.

  • A beneficiary to a will can also witness the will.

As a general rule this is not true. In certain rare circumstances, an interested witness, that is, a witness who is also a beneficiary to the will, may act as witness and maintain his or her status as beneficiary under the will. However, this is very risky practice. A beneficiary to a will should never act as a witness to the same will.

  • Must witnesses know that they are signing a will?

No, a will that is executed in accordance with the Act is validly executed even if one or more witnesses to the will did not know that the document he or she attested and signed was a will.

Get it right

The dangers of having a potentially invalid will are twofold:

  1. Your will is greater exposed to legal proceedings brought by people wishing to challenge the validity of the will.
  2. If found to be invalid, the rules of intestacy will likely apply to determine how your estate will be distributed. This means your estate will be dealt with as if you died without a will.

Together, these dangers increase the likelihood that your assets will be distributed against your wishes.

Angela Harvey, Partner  |  Phone: +61 2 9233 5544  |  Email: axh@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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