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  • Writer's pictureNicholas Rose

Writing a Valid Will

What makes a will valid? The short answer is the legal trademark “it depends,” or in the longer form: “it depends if the Court finds it to be a valid will." The reality is that wills can be valid in many forms, text messages, videos, even self-executing smart contracts. The issue is whether you want a substantial part of your estate to be paid to lawyers and the Court in order to try and prove that your will was indeed valid.


Those great cases of a text message or scrawled hand note being considered a will always fail to mention the tens to hundreds of thousands of dollars spent rectifying the document to become a valid will. Keep it simple and secure with a formal will drafted by a competent lawyer that can be quickly and cheaply Sealed for Probate.


For a will to be valid there are two areas that need to be addressed. Firstly, the formal requirements or how the document is structured, and secondly the state of mind of the testator or person making the will needs to align with the terms in the document.


Formal Requirements for a Will


The Succession Act 2006 (NSW) requires a valid will to:

  1. be made by a person over the age of 18;

  2. be in writing;

  3. be signed by the testator;

  4. that signature must be made or acknowledged by the testator in the presence of two or more witnesses; and

  5. at least two of those witnesses must attest and sign the will in the presence of the testator.


There are a number of other interesting quirks that do not affect the validity of the will but may affect the individual gifts. Importantly s 10 of the Succession Act 2006 (NSW) does not prevent a beneficiary from witnessing the signature of the testator, but it will void a gift to them if there is not at least two witnesses that are not beneficiaries, the other beneficiaries give consent, or the Court is satisfied it was a free and voluntary disposition. It is always safest to avoid risking any of these issues to save litigation costs for your estate.


The above formal requirements are admittedly not very complex. This is why a number of will kits and a cheap digital wills have been very successful for their creators, if not the people actually trying to rely upon the wills these services create. As we have written about there are substantial issues with using postal will kits, digital wills, and other will kits. The simplest way to explain it is to use the words of my mentor, a barrister specialising in contested estates:


“I have holiday house on the south coast called PFPW – Paid For by Postal Wills.”


Testator’s State of Mind


This is the tricky part. How do you know if a person making a will (the testator or willmaker) has the capacity to do so? It is very hard to ask a deceased person if they were ‘all there’ after all.


Testamentary Capacity is discussed in detail in our article on the subject. A will needs more than just Testamentary Capacity though. A willmaker needs to also know and approve of the contents of the will, and must also be free from the undue influence of other people. Of course, they must also have the intention to make that specific will.


Knowledge and Approval of the Will


Knowledge and approval does not mean they need to read the will, but they do need the will explained to them and indicate that it represents their intentions. Testamentary capacity and Knowledge and approval often go hand in hand, however recent cases such as Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197 show that even if a willmaker has capacity, understanding cannot be presumed. A testator with capacity can still fail to know and approve of a will if there are issues like illiteracy or language barriers without appropriate translators present.


Undue Influence


Undue influence is unique in wills and estates law in that its definition does not follow the precedent definitions of other Courts, but one that is much harder to prove. If a willmaker is badgered, harassed, even actively manipulated by a beneficiary in to making their benefit under a will greater than it otherwise would have been, this might not be sufficient. A willmaker must be so pressured by another person that they make a bequest they do not actually wish to give at the time the will is executed, it isn’t just a nagging or scheming sibling but a sibling who completely overbears your mother or father’s independence of thought.


If the willmaker relies upon the persuading party to give independent advice this is different. A depressing example from Dickman v Holley; Estate of Simpson involved a solicitor working for an aged care facility run by the Salvation Army drafting a will which gave everything to the Salvation Army for the use of that nursing home and appointed an officer of the charity as her executor. Needless to say this was set aside but at no small cost to the estate.


Intention to Make a Will


Intending to make a will is usually self-evident in the fact the will exists at all. However, there have been more than a few embarrassing and frankly hilarious examples of this not being the case. Nichols v Nichols involved a will executed by a very inebriated individual who thought it to be very funny and sarcastic thing to give everything to a beneficiary they despised while down at the pub with his mates. In the Estate of Meyer an absent-minded solicitor gave their clients the wrong wills to sign, an issue that was not discovered until the first testator died some years later.


If you need assistance in relation to estate planning matters, please contact Jenkins Legal & Advisory on 02 4929 2000 or email office@jenkinslegal.com.au

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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