The Requirements of a Valid Will

Statistics: Wills in Australia

According to research conducted by the University of Queensland (October, 2012), approximately 60% of the Australian adult population has a valid will.

For the 40% of Australians without a valid will, significant issues can arise for dependent relatives, partners and close friends should the worst happen.

If you die without a valid will, the law will decide who gets your assets, using defined rules that apply to everyone and do not take into account an individual’s wishes or situation.

What makes a Will valid?

Under The Wills Act 1997, there are numerous requirements that must be met to ensure the validity of a will.

A will is not valid unless it is in writing, and signed by the testator (the person making the will) or by another person, in the presence of, and at the direction of the testator. The testator’s signature must be made with the intention of executing the will, and in the presence of two or more witnesses. These witnesses must attest and sign the will in the presence of the testator. They need not be in the presence of each other in order to sign the document, as long as the testator is present at the time of each signing.

Admitting an Informal Document to Probate

In the event that the above criteria are not met, an informal document may be admitted to probate under the following circumstances:

  • A “document” is present
  • The document records testamentary intentions (a testator’s intention that the document should function as their last will and testament).

It is important to note that the Registrar of Probates has limited powers to admit an informal will to probate; and as such the Court may not accept an informal will as valid.

Case Study: Cassie v Koumans

A video tape made by the will testator was considered in the case of Cassie v Koumans [20071 NSWSC 481. The video was put before the Court as an addition to the will that altered the terms of the will in question. While the Court was satisfied that the video recording could constitute a “document”, the document was not admitted to probate as the Court was not fully satisfied that the statements made in the video were intended by the deceased to alter her final will and testament.

This case highlights the importance of having a valid will in place as any document that is not valid will only be admitted to probate at the discretion of the Court. If the Court does not consider that the deceased intended the document to be their last will and testament, it will not be taken into consideration when distributing the deceased’s estate. In this instance, the wishes of the deceased as to how their assets will be distributed at the time of their passing may not be carried out.

In light of the above, if you think that you may find yourself in an Estate, Inheritance or Will dispute, or needing to challenge a will please do not hesitate to contact the team at Hentys Lawyers today.

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