Wills 101 - What makes a Will valid?
The making of a Will can be an important act, with potentially far-reaching consequences. Since you cannot take property with you when you die, having a valid Will is indispensable.
Wills have been written for many centuries and on many different types of material and substances. A Will does not have to be written only on paper to be valid. Section 6 of the NSW Succession Act (2006) sets out what makes a Will valid. This section says that a Will is not valid unless:
(a) it is in writing and signed by the testator (person making the Will) or by some other person in the presence of and at the direction of the testator, and
(b) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and
(c) at least two of those witnesses … sign the will in the presence of the testator (but not necessarily in the presence of each other).
These three elements are critical and in fact they are what ‘make’ the Will valid. If any of them are absent, then the Will may not be valid. However, it must also be kept in mind that a Court may authorise a Will to be made, altered or revoked for a person including persons without testamentary capacity.
In addition, all Wills must be voluntarily entered into and signed by the testator. A Will signed (also referred to as ‘executed’) by a person who was coerced into signing the Will, or who signed the Will under duress, is not considered to be a valid Will. A Will must properly dispose, or give, the testator's property and a person must be of legal age (18 years old) or have been lawfully married to make a valid Will.
Please note the answers provided are for your general information only and we ask you to call our office on 02 6331 2911 to obtain detailed legal advice for your individual situation.
Patrick Coetsee | Wills & Estate Solicitor
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