The importance of having a will cannot be understated. For those people who go to the effort of making a will, it is crucial that they go the extra step of ensuring that their will complies with all the formal requirements set out by the law.
A will is a legal document that sets out the distribution of assets following death. Considering the amount of care and effort that most people put into creating contracts dealing with the transfer of money during their lifetime (think about mortgage documents or contracts involving the sale of land or a business), it is surprising how careless some people can be when it comes to preparing and signing wills.
The law has strict requirements about how a will must be signed and witnessed, including that it must be signed by the will-maker in the presence of two adult witnesses who are not beneficiaries. The rationale behind these strict legal requirements is to safeguard against untoward conduct such as fraud, duress or undue influence.
Even if the formal requirements have not been complied with, legislation allows the Court to declare that a will is valid as an ‘informal will’ in certain circumstances. This means that a person’s intentions will not necessarily be overturned just because they did not follow the strict rules about signing and witnessing wills.
While the informal will provisions may save the intentions of a deceased person, they should not be relied upon. An application for probate of an informal will involves substantially more evidence and procedural compliance than an application for probate of a valid will. In addition, an informal will application requires notice to be given to anyone who may benefit under a previous will or intestacy, as the case may be.
A will can also be affected in circumstances where a beneficiary witnesses the will. The Succession Act in New South Wales provides that gifts to beneficiaries who witnessed the will are void except in certain circumstances, including obtaining the consent of other beneficiaries or proving to the Court that the gift to the beneficiary was freely and voluntarily made. The rule that prevents a witness from benefiting under the will can be overcome in certain circumstances but it creates substantially more legal work to save the gift.
Everyone over the age of 18 years should have a will. For a number of reasons, it is worthwhile seeking professional advice in creating a will, one of which is to ensure that the formal requirements are complied with.
Rebecca Tetlow is an Accredited Specialist in Wills and Estate Law (NSW) and a Senior Associate at Dobinson Davey Clifford Simpson, 18 Kendall Lane, New Acton, Canberra ACT 2601 and can be contacted on (02) 6212 7600.