Leaving such a testamentary document raises important questions. Did the deceased approve of the contents of what is a draft will, and so intended it to be their last will – but simply didn’t get around to executing it according to the legal formalities? Or were they unsure and wanted alterations? Can an unsigned will, that is an unexecuted will, or informal will, as lawyers often call them, even be admitted to probate by the Court? The Court’s dispensing powers are discretionary – it depends on the circumstances in each case.
Many couples wish to leave their estates to each other when they die, and then to their children. They usually nominate the same people to act as their executors and trustees, typically each other, and one or more of their children may be appointed as substitutes.
Putting these intentions into writing in their individual will documents therefore contain identical terms, so that each document reciprocates the contents of the other. Lawyers commonly refer to these wills as “mirror wills” or reciprocal wills.
Who can witness or attest the signing of a will for it to be valid in law? And what must they do?
The legal formalities to make a valid will require the will-maker to sign their will in the presence of at least two people, acting as formal witnesses to the event. Executing a will in front of witnesses fulfils a protective function.
Witnessing a will – key points:
1. The will-maker must sign the will first in front of two or more witnesses, all present at the same time and in the same place. 2. Witnesses must be mentally competent and be able to see the will-maker make their signature, (the attestation) or other sign as appropriate. 3. At least two witnesses having attested the will then sign their names; in confirmation that the will-maker’s signature, made in their presence was genuine. 4. Anyone likely to inherit under the will, ie a beneficiary, including their spouse/partner should not witness it – although the law has changed in some states and in others exceptions are permitted. Seek legal advice.
One way or another, the freedom to dispose of property by will has been subject to varying degrees of control for centuries. Some of the earliest regulations of wills have been traced as far back to Rome, circa 450 BCE.1 More →
Making a valid will is important to its effectiveness. The word ‘valid’ in law means to be legally effective and having legal force.1 Who else needs to sign a will?
A will documents a person’s intentions for what they want to have happen when they die, see What is a will. It contains their instructions on who is to inherit their property and how, who will administer its disposal and any preferred arrangements for their funeral, . If their intentions are to be legally effective, and ultimately put into effect, the will needs to be valid and comply with the legal rules.