What are the legal requirements for a formal Will?
The legal requirements for a Will can differ slightly depending on where you are in Australia.
For example, in Victoria, the Wills Act 1997 states a Will is not valid unless:
It is in writing
It is signed by the testator (the person making the will) or by some other person, in the presence of, and at the direction of the testator
The testator has signed the Will with the intention of executing the Will (meaning they want to make it official)
There are two or more witnesses present at the time the testator signs the Will
At least two of the witnesses sign the Will in the presence of the testator
The witnesses to the Will are 18 years or older.
Common mistakes made when drafting a Will
From my experience, the most common mistake made when using the ‘do it yourself’ Will method is that the witnesses do not sign the Will correctly or not at all, which creates an ‘informal Will.’
In other instances, the Will is deemed informal because it is drafted by a non-lawyer, or a lawyer is not present at the execution (signing) of the Will, resulting in some of the formalities of the Will not being met.
Informal Wills have difficulties in getting Probate granted by the Supreme Court.
The Supreme Court will only grant Probate if it is satisfied that the testator (Will maker) intended the document to be their last Will. The Supreme Court will look at any evidence relating to how the informal Will was signed, evidence of a person’s testamentary intentions (intention to make a Will), their capacity when executing (signing) the Will and evidence by way of Affidavit from the witnesses to the Will.
If the will is deemed ‘informal’, it is very likely your Estate will incur further legal fees to have Probate granted.
Compiled by: Mark Murnane, Wills and Estate Lawyer
DISCLAIMER: This article is provided for general information purposes only. It does not constitute specific legal advice or opinion. Although our aim is to provide you with as accurate information as possible, you should not act or rely upon the information in this article without seeking the advice of an experienced lawyer who specialises in the particular area of law relevant to your inquiry. Please do not to hesitate to contact Murnane Legal to make further inquiries or to make an appointment to discuss the specifics of your situation.
