I Don’t Have a Will, Do I Need to Make One?
Most people are unaware of the importance of creating a will. They believe they don’t need a will because they don’t have sufficient assets or they assume that their wishes will automatically be effected by their immediate family under the rules of intestacy.
However, the distribution of one’s estate and assets once they die is much more complex than one might realise. Having a valid Will is essential to ensure your wishes are carried out after your death. It also ensures that your assets are protected and avoids unnecessary litigation regarding the amounts received by beneficiaries or who will become the testamentary guardians of minors.
Am I eligible to make a will?
Anyone over the age of 18, or married, can make a Will, provided they have testamentary capacity.
To have testamentary capacity you must not be mentally impaired and must be able to make rational decisions. Additionally, you must understand the legal consequences of a will, have knowledge of the amount of your assets, and know who would be expected to benefit from your estate.
Persons under 18 years old may make a Will by applying to the Court for approval. This is recommended in cases where young people earn high incomes from entertainment, sports careers, modelling or commercial endorsements.
What are the requirements of a valid Will?
There are formal requirements for the creation of a valid Will.
In New South Wales, section 6 of the Succession Act 2006 (NSW) (“the Act”) states that a will is not valid unless:
(a) it is in writing and signed by the testator (will-maker) or another person in their presence and at their direction;
(b) there are two or more witnesses to the testator’s signature; and
(c) at least two of those witnesses attest and sign the will in the presence of the testator.
Who can be a witness?
A solicitor, including the solicitor who drafted your Will, may be a witness to the execution of your Will. A solicitor is recommended as they can ensure the formal requirements of execution are complied with. However, witnesses do not necessarily have to be a solicitor. A witness must be over 18 years old and independent, meaning they cannot be your spouse or a beneficiary under the Will.
What happens if I fail to meet these requirements?
If the formal requirements of a Will are not met, it does not automatically mean the Will is invalid. Section 8 of the Act allows the court to dispense with these formal requirements where a document, or part of a document, which purports to state the testamentary intentions of a deceased person has not been properly executed. Such documents are known as informal Wills.
To approve an informal Will, the Court must be satisfied that:
(a) there is a document;
(b) the document sets out their testamentary intentions, ie, the wishes of the person about the division of their assets after death; and
(c) the person intended that document to be their Will.
The definition of ‘document’ is broad and is more than just a piece of paper. Examples of documents that have been accepted as informal wills include: a video of the person saying who they wanted to leave their estate to; an unsent text message on a mobile phone; notes on an iPhone; and a word document called ‘will.doc’ on a home computer.
The Court will carefully consider the nature and terms of the informal document and where and when it was found. The Court may also consider matters relating to the execution of the document together with evidence of statements made by the deceased to family and friends as to his testamentary wishes.
Successful Applications for an Informal Will?
The following are some examples of successful applications for an Informal Will:
Statutory Declaration sworn at a Police station;
an unsent text message;
a word document called ‘will.doc’ on a home computer;
a document typed on the deceased's mobile phone shortly before the deceased's suicide (Yu  QSC 322);
an unsigned Will kit document in which the testator wrote the words “I declare this to be my last Will and Testament” where the document was written days before their death and the testator wrote on the document that even though it hadn’t been signed properly, they hoped it would be ok; and
a note on iPhone.
The following are some examples of unsuccessful applications for an Informal Will:
an unexecuted draft Will (Robinson v Jones  VSC 222);
a Will which the testator had drawn by a solicitor several years prior and the deceased had kept in a drawer in the house but never signed; and
a Will kit document written out by a deceased’s son on his instructions and left with the deceased to be signed. The document was stored with the deceased’s other important documents but never signed.
Applications to have an informal Will recognised have uncertain and unpredictable outcomes. They are also very expensive (often in the hundreds of thousands of dollars) and can delay administration of an Estate by many years and cause significant stress and angst for your family.
If you currently have a handwritten Will, a Will kit or any other document which sets out your testamentary intentions other than a formal Will, you are encouraged to make a formal Will as soon as possible.
If a loved one has passed away and you have found a document which purports to be a Will or a Codicil to a Will, contact a solicitor as soon as possible to obtain advice.
Our Wills and Estates Team is happy to assist you with your new Will, or to guide you through the process of dealing with an informal Will.
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