What makes a will legal ?
The Succession Act 2006 in NSW outlines what is required to make a will legal. There is nothing worse, than having made a will, only for your intended beneficiaries to discover that the will does not meet all the formal requirements.
Your will must be in writing
Your will must be in writing so that it can be made legal. This includes wills that have been written on walls or anything on which there are marks, figures, symbols which can be interpreted by a person who is qualified to do so. It also includes anything from which sounds, images or writings can be reproduced.
You must sign the will
The will must be signed by the testator ( the person making the will) in the presence of two(2) or more witnesses, who are present at the time the testator signs.
Your witnesses must witness your signature
The witnesses must sign the document after the testator has signed the will. It is very important that the witness has seen that the testator has signed the will. Therefore a blind person cannot witness a will.
However it is not necessary for the witnesses to know that what is being signed is the will.
Your will can be signed by another person at your direction
In the rare case where a testator is unable to sign the will themselves because of injury or disability, they can direct that another person sign the will on their direction. The must be done in the presence of the testator.
The court does have the power to dispense with the requirements of making the will if necessary
Although this is not something that should be relied upon as an absolute guarantee, there are instances where the testators intentions have been upheld, even when the will did not meet all the requirements of making a formal will. There have been cases where a testator’s signature was not witnessed at all but the Court found that it met the testators intention to create a will and so was granted probate. The case of In the Estate of Kelly (1983) 32 SASR 413 is relevant.
If you would like any more information about wills please contact us.