Leaving a legally valid will that is legally effective
Making a valid will according to law is important to its effectiveness.
A will documents a person’s intentions for what they want to have happen when they die, see What is a will. It contains your instructions on who you want to inherit your property and how they will inherit it after you go.
It is only by making a will that you can say who is to be your legal personal representative (LPR) that is your executor who will look after finalising your estate after you die. It becomes your executor’s responsibility to administer your estate according to your will and any preferred arrangements for your funeral.
For a valid to be legally effective and ultimately your wishes put into effect it is important that it is valid according to law. Otherwise an intestacy or partial intestacy may result with consequences you may not have wanted. So what do you need to do?
Legal requirements for a valid will
The word ‘valid’ in law means to be legally effective and have legal force.1
The law has particular requirements for wills to be valid. These are:
- the will-maker must be mentally capable at the time of making the will, and understand its nature and effect; they must have testamentary capacity to make a valid will;
- Be 18 years or over, or if a minor seek court approval;
Intention to make a valid will
- Must intend to leave instructions for the disposal of their property when they die; intend to make a will, alter or cancel an existing one, (have testamentary intentions);
- be under no undue influence or pressure; act freely and without coercion.
Knowledge and approval
- Know generally what they own and what they are doing, that a will disposes of their property on death;
- Have read the will document, understood and approved of what it said and its effect; are satisfied it contains their settled testamentary wishes and
- intend the document to be their will.
Statutory formalities for signing and execution
- Your will must be in writing;
- Signed by you (or if unable to sign, by someone else in your presence and at your direction). In this situation you must intend the document to be authenticated as your will and to take effect on your death, and
- Your signature must be made in the presence of two or more witnesses who are all present with you together at the same time; and
- the witnesses in turn must then sign the will in the your presence so as to confirm (that is attest) that they saw you sign your will.
The will-maker’s act of signing the will shows they intended the document to be final. A document left unsigned gives the inference that the will-maker was not happy with its contents and did not mean it to be final.
Why such emphasis on validity?
A will meeting the legal requirements for validity means the will-maker’s instructions and wishes as set out in the terms of the will should be valid and legally effective. It should ensure the will-maker’s wishes are carried out, facilitating efficiency in obtaining court approval for a grant of probate.
A valid will is important to withstand a challenge
Sometimes a will might be challenged because its validity is questioned in some way, such as
- it was not properly signed and witnessed;
- the will-maker was incapable and did not know what they were doing; or
- they had no intention of making a will or altering an existing one;
- did not know what the will said;
- did not approve of what it said in whole or in part and was
- pressured, coerced or under undue influence to sign it;
- the signature on the document was forged; or
- fraud was involved – for example by false representation.
A valid will makes for efficient and orderly probate applications
Leaving a valid will makes it easier on personal representatives applying to the court for a grant of probate. Wills complying with the statutory formalities and general requirements reduce possible inquiries by the Probate Registry. Problems with invalidity delay administration and increase costs, in difficult cases requiring court proceedings.
Legal formalities on signing and making a valid will
These have been mentioned above. State and territory wills and succession legislation, (links available here) contain provisions on the validity of wills. The statutory provisions about executing a will are below. Generally the formalities are similar but differences exist. A will must be properly signed in compliance with the statutory formalities to be legally effective.
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 2000 (NT)
Will to be in writing and signed before 2 witnesses, s 9 of the Wills Act 1968 (ACT)
More on the nature of signing or rather the execution of wills can be read here.
A note about witnesses – who needs to sign a will in addition to the willmaker
Some ask who needs to sign a will.
Witnesses are required to watch the will-maker sign their will.
Then having done so, to sign the document themselves, as verification (or attestation) of what they saw. The idea is that if the validity of the will is challenged the witnesses can be contacted to say what happened. Their presence is a check against fraudulent activity, such as forging the will-maker’s signature.
The witness beneficiary rule
Witnesses should not be anyone who will receive a gift or some benefit (a beneficiary) under the will. To do so would disqualify them from taking the gift. In some states and territories legislation has varied this rule under strict conditions so that an “interested witness” may benefit. To avoid doubt legal advice is essential.
Witnesses don’t need to read the will
Witnesses don’t need to read the will, know what it says or even that it is a will. It is the acknowledgement of the will-maker’s signature that is important. Some people think that if the witness does know it is a will, then in the event there is a challenge as to its validity, the witness can testify what the deceased told them.
Who can’t witness a will?
Wills and succession legislation everywhere prohibits anyone from being a witness who is unable to see or attest a person signing a document. This refers to blind persons.
Meaning of ‘attest’
To ‘attest’ means a person witnessed or watched the willmaker sign a document. If the will-maker was unable to sign, the witness saw the will-maker make some physical acknowledgement directing another person to do so.
Does the signature have to be at the end of the will?
It used to be the law in all states and territories that the signature had to be at the end or foot of the will. Legislative amendments have relaxed that requirement everywhere except in the ACT.
Amendments to a will
Alterations to a will or additions by way of a codicil must be witnessed in the same way to be valid. If the proposed changes are significant it is usually preferable to make a new will and revoke the previous one. Legal assistance should be sought.
1. Butterworths Concise Australian Legal Dictionary, 3rd ed. 2004.
4 May 2014, updated 4 December 2020
Images: Supreme Court of South Australia, B Stead.
© BHS Legal