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Signing and execution of a will – same thing?

A valid will needs to be executed

Signing a document is not the same thing as having to execute it. We might talk about signing a will but technically a will is required by law to be executed. 

So what does execution mean?  Execution of a document means to do all what the law requires to be done so as to give the document legal effect, to give it validity.

Formal legal requirements for signing and executing a will

The legal requirements for executing a will, known as the formalities, are set out in the wills and succession legislation in all states and territories. Links to the relevant sections of the state/territory statutes are shown below. 

While there may be some differences generally the formal legal requirements for executing a will are that:

1. The document be in writing and

2. Signed by the will-maker; or if they are unable to sign themselves, then by someone else in the will-maker’s presence and at their direction;

3. The will-maker must sign with the intention the document is to be their will.  In other words they understand and approve of what it says on what is to happen to their property when they die; in effect acknowledging the solemnity of the document;

4. If the will-maker signs first in front of at least two witnesses (but can be more), the witnesses and the will-maker must all be present together when this is done,

5. At least two of the witnesses must then attest and sign the will in the presence of the will-maker – but the witnesses don’t have to do this in the presence of each other,

Legislation on signing and executing

The statutory requirements in each state and territory for executing a will:

How should a will be executed?  Section 6 of the Succession Act 2006 (NSW)

How a will must be executed, s10 of the Succession Act 1981 (QLD)

How should a will be executed? Section 7 of the Wills Act 1997 (VIC)

Requirements as to writing and execution of will, s 10 of the Wills Act 1936 (SA)

Execution generally, s 8 of the Wills Act 1970 (WA)

How a will should be executed, s 8 of the Wills Act 2008 (TAS)

How wills should be executed, s 8 of the Wills Act (NT)

Will to be in writing and signed before 2 witnesses, s 9 of the Wills Act 1968 (ACT)

There are other aspects to a will’s validity – read more on making a will and the requirements for validity here.  

What happens if a will has not been executed properly?

Sometimes it is discovered that a will was not executed properly in some way. Usually at the time of making a probate application. 

If it is found that the will was not executed in compliance with the formal legal requirements, does this mean that the will is invalid? Not necessarily, it depends on the circumstances.

The legislation provides the Court with a dispensing power

Provisions in the respective succession and wills legislation provides Courts with special powers to dispense with the legal requirements for executing a will.  However in using this power the Court has to be satisfied on the evidence and all the circumstances of the particular case that the will-maker intended a document to be their will; before admitting it to probate.

An application under these dispensing provisions means that evidence will need to be submitted to the Court along the lines of any statements of the deceased about their will, their testamentary intentions, the way in which the document was signed, when, and where, who were the witnesses, and statements from the witnesses as to what happened. 

It will depend on what the particular problem is and the circumstances, every situation being different.  Assistance and advice should be sought from a legal practitioner practicing in this area.  Lawyers may be found through the relevant law societies here.

 

How to ensure a will has been executed properly?

Generally execution of the will is overseen by the drafting solicitor in their offices.   However this may not always be convenient.  For those who arrange for execution outside their lawyer’s office, it is worth taking the time to have a legal practitioner check it, once executed, just to be sure everything is in order.  Fixing up any deficiencies, however small, down the track, can be far more expensive, time consuming and stressful.

 

1.  In the Estate of Williams (dec’d) (1984) 36 SASR 423, per King CJ, where he said that “To execute a document is to do what the law requires to be done to give validity to the document..” at 425, and cited with approval by the High Court of Australia in MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24.

B Stead
BHS Legal
10 February 2015, last updated 29 June 2021

 

Important notice: This article is intended for general interest and information only. It is not legal advice and nor should it be used as such. Always consult a legal practitioner for specialist advice specific to your needs and circumstances and rely on that.

© BHS Legal

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