Many people are put off making a Will because they assume it will be a complicated and time consuming process, and they don't know where to start.
In reality, this needn't be the case. The contents of your Will will depend on your own personal circumstances, and while some people's private affairs are undoubtedly more complicated than others, for most people a Will is a straightforward document that expresses how you would like your assets to be distributed after you die.
Errors can invalidate Wills
However, for even the most straightforward of Wills, there are number of formalities that need to be met. Failure to satisfy these requirements could increase the risk of your Will being successfully challenged in court, or could even result in you being deemed to have died intestate (without a Will) because your Will is invalid.
The importance of a correctly prepared Will was clearly demonstrated in a recent English case involving incorrectly signed Wills. The Wills belonged to a married couple and were brief and straightforward – both spouses left their entire estate to each other, and when they both died their estate was to go to a man they treated as a son.
However, as a result of an administrative error, the couple signed the wrong Will – the husband signed his wife's and she signed his.
The wrongly signed Will was eventually held to be valid, but it had to go all the way to the UK Supreme Court for this to happen. If the Supreme Court had not reached this decision, then the husband, who was the last to die, would have been deemed to have died intestate, and the wishes he had expressed in his Will would have been ignored. (See our Why should I make a Will? for more details.)
Essential requirements
The formalities that are needed for a Will to be valid in New South Wales are quite straightforward:
- The Will must be in writing. Merely telling someone how you want your assets to be distributed isn't enough, even if there are witnesses to these instructions. For a Will to be valid, it must be typed out, printed or even handwritten.
- The Will must be signed by the person making the Will. Ideally you should sign on each page of your Will, but one signature at the end of the Will is usually enough to make it valid.
- The act of you signing your Will must be witnessed by at least two people, and these witnesses must also sign the Will in your presence. Almost any adult can act as a witness, but they must not be beneficiaries under the Will they are witnessing.
- The person making the Will must normally be over the age of 18 – although there are exceptions.
Testamentary capacity
A fifth and very important requirement is that the person making the Will has what is known as "testamentary capacity". This is a legal term that is defined by the New South Wales Trustee and Guardian as:
- "You know the legal effect of a Will
- You must be aware of the extent of your assets
- You must be aware of the people who would normally be expected to benefit from your estate
- You must not be prevented by reason of mental illness or mental disease from reaching rational decisions as to who is to benefit from your Will."
Lack of testamentary capacity is one of the more common grounds used when someone wants to challenge the validity of a Will. Challengers will often try to argue that the person making the Will no longer had the mental capacity to understand what he or she was doing, or that someone took advantage of the Will-maker's mental state to persuade them to amend the Will in their favour.
It will then be up to a court to decide whether the Will-maker had sufficient mental awareness to understand the implications of the new, or amended, Will.
Keep your Will safe
Finally, once your Will has been prepared, it is important to keep it safe. If you misplace it, or it can't be located after your death, then you could be deemed to have died intestate.
The original could be kept by your solicitor, by your bank or in any other safe place. It is also a good idea to let the Executors of your Will know where to find it in the event of your death.
The best way to ensure your Will meets all the essential requirements is to have a solicitor prepare it for you. A solicitor will also be best placed to advise you on how to ensure that your estate is distributed exactly as you want it to be.
Contact us
If you are thinking of contesting, making or updating a Will then contact Szabo & Associates Solicitors today and speak with one of our specialist solicitors. Call us on (02) 9281-5088 or fill in the contact form to the right of this page.