While it is tempting to try and save money by creating a will online or buying a will kit from the post office, it comes with risk. If the will is not done properly, it may be found to be invalid.
Making a valid will in NSW – what you need to know
A will should comply with the legal requirements of executing a will which are found in section 6 of the Succession Act 2006 (NSW). The following requirements must be met:
- The will must be in writing, either typed or handwritten
- The will must be signed by the will-maker or by another person in the presence of and at the direction of the will-maker
- The will-maker’s signature must be made or acknowledged in the presence of two or more witnesses, present at the same time
- At least two of those witnesses must attest (witness) and sign the will in the presence of the will-maker (but not necessarily in the presence of each other)
- The signature of the will-maker or person signing at the direction of, and in the presence of the will-maker must be made with the intention of executing the will.
On what grounds can a court decide that a will is invalid?
For a will to be valid, each and every one of the above legal requirements must be met. If one or more requirement is not met, the court may consider the will to be invalid.
What happens if a will is invalid?
If the court rules that a will is invalid, the estate will be dealt with as if there were no will. This is known as an intestate estate. When a person dies intestate, the distribution of the deceased’s estate depends on the relationship people had to that person. Top of the list in intestate distribution is the spouse or partner, followed by children, parents, siblings, grandparents, aunts and uncles, and finally first cousins.
Are there any real-life examples of invalid wills?
There have been many examples of invalid wills in Australia. Most have involved people using post office will kits and online wills. In these examples, the courts refused to recognise these documents as valid wills as they were not properly signed and witnessed and it was unclear as to what property was to be gifted to whom. Even though a court may be satisfied that there was a general intention to make a will, the terms of the document can be deemed too unclear to determine the will-maker’s intentions.
Signing a will
Although the legal requirements have been relaxed over time, it is still advisable for the will-maker to sign the will at the foot or end of the will and on each page. It is also essential to initial any alterations.
What happens if the will-maker is unable to sign?
Section 6(1)(a) allows for a will to be signed by a person other than the will-maker, in the presence of and at the direction of the will-maker. This is useful if the will-maker is unable to sign for some reason. If it is necessary for a will to be signed in this way, it is highly advisable to seek advice from a lawyer.
Choosing the best wills and estate solicitor in Sydney
To ensure your intentions are accurately reflected, you should resist the temptation to opt for a will kit and have your will drafted by a solicitor. Benjamin & Robinson Lawyers are Sydney lawyers who can assist you with drafting your will to ensure it will be valid. There is no question that engaging the services of a properly qualified and experienced lawyer is money well spent.
Benjamin & Robinson Lawyers – affordable wills and estate lawyers in Sydney
Are you seeking an affordable wills and estate lawyer in Sydney or need advice? Benjamin & Robinson Lawyers have specialist accreditation status with the Law Society of New South Wales and are committed to providing the highest level of legal advice and service. Benjamin & Robinson Lawyers have decades of experience, thousands of trusted clients, 99.5% successful cases and 1099 case studies.
We specialise in wills and estate with services including the drafting and updating of wills, will disputes, powers of attorney, estate planning and more.
With offices in South Hurstville and St George, the fees are affordable and competitive. For enquiries or a quote, contact us today on 02 9547 1733. You can also email us or request a consultation. Don’t leave anything to chance. Connect with our wills and estates experts today.