What Makes A Will Legally Valid
In this article we cover the formal requirements and special rules of creating a valid Will, to ensure your assets will be distributed in accordance with your desires.
Key takeaways
- A valid Will helps ensure your Estate is distributed according to your wishes rather than intestacy rules.
- A Will must be in writing, as video, audio and other formats are generally not considered legally binding apart from limited exceptions.
- The testator must sign the Will for it to be legally binding.
- The Will-maker must be an adult and have testamentary capacity.
- Two eligible witnesses are required, and any codicil must be signed and witnessed in the same way as a Will.
WHAT ARE THE LEGAL REQUIREMENTS FOR A WILL TO BE VALID?
IT MUST BE IN WRITING
In Australia, the only accepted format of a Will is in writing. This means that no other presentations, including video (there are exceptions), voice recording or other visual formats, will be considered legally binding.
However, there are several ways to write your legal Will, including online templates, DIY kits or enlisting a solicitor to help you write your Will.
IT MUST BE SIGNED BY THE TESTATOR
You Will have to sign your will for it to be considered legally binding.
If you leave out your signature the court will consider your Will incomplete and it cannot be used to distribute your estate.
As the testator, you will have to sign your Will in front of two witnesses who can confirm that you intend to use these documents as your legally binding and final Will.
THE TESTATOR MUST BE OF SOUND MIND & HAVE TESTAMENTARY CAPACITY
Firstly, you have to be considered a legal adult to write your Will and be 18 years of age or older.
You also have to have the mental capacity.
This means you cannot suffer from any illnesses that can affect your ability to understand the implications of your Will.
THE SIGNATURE MUST BE WITNESSED BY TWO PEOPLE
There are specific requirements as to who can legally witness and sign your Will. Both witnesses must be considered legal adults (age 18+) and be able to confirm that you are signing your Will, meaning they cannot be blind.
It is also important to note that neither of your witnesses are allowed to be your beneficiaries, meaning they cannot be included in your Will.
Both witnesses must sign the Will in the presence of the testator and each other.
It is important to ensure your witnesses meet the legal criteria to avoid the document being contested.
MAKING CHANGES TO A WILL
It is possible, or even recommended, that you change your Will if your circumstances change e.g., you divorce or remarry. If you only want to make smaller amendments you don’t have to redo the entire Will.
Instead, you can add what is called a ‘codicil’ – a separate document added or appended to your existing document.
A codicil must be signed and witnessed in the same way as a Will, under the above requirements.
For larger changes to your Will, it may be more appropriate to create a new document.
Seek advice from your solicitor if you are unsure what your specific circumstance requires.
It is important to ensure your witnesses meet the legal criteria to avoid the document being contested.
HOW CAN A SOLICITOR HELP?
To ensure your will covers all requirements outlined in this article, it is highly recommended you contact an Estate Planning Attorney. It is not unusual that wills created without the advice from a solicitor are later contested because it is not valid or its content is unclear.
Speak to our experienced Estate lawyers on the Gold Coast about getting a legal Will made for you. It takes less time than you think, and the amount of stress it can save your loved ones in the future makes it even more worthwhile. You may have many issues to discuss with our solicitors and we would encourage you to make an appointment.
Frequently Asked Questions
Does a Will have to be in writing?
Yes. The accepted format is a written Will, with only limited exceptions noted.
Does the testator need to sign the Will?
Yes. Without the testator’s signature, the Will may be treated as incomplete and cannot be used to distribute the Estate.
Who can witness a Will?
Both witnesses must be legal adults, able to confirm the signing, and cannot be beneficiaries under the Will.
What is testamentary capacity?
It means the Will-maker must have the mental capacity to understand the implications of making the Will.
Can a Will be changed without starting over?
Yes. Smaller changes can be made by codicil, which must be signed and witnessed in the same way as the Will.