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What Makes A Will Legally Valid

Jun 6, 2022

A will is an important legal document which outlines how your assets are to be distributed after your passing. Without a valid will (known legally as ‘dying intestate’), your possessions and estate will be distributed by an administrator appointed by the court and in accordance with intestacy rules. These may not accurately reflect your wishes. Legal wills also assist your family in understanding your wishes, easing the burden during a difficult time. 

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 to your desires.

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 you 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 consider 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 to write your will. 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 whom 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 circumstance change e.g., you divorce or remarry. If you only want to make smaller amendments to your will you don’t have to redo the entire will. Instead, you can add what is called a ‘codicil’ – an additional document added or appended to your existing will. A codicil must be signed and witnessed in the same way as for 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.

How can a solicitor help?

To ensure your will covers all requirement 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 is later contested on the grounds that 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.

You can read some of our Will & Estate FAQs or please contact us today. 

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