Applying for probate of a Will can be a complex process to navigate. Making sure that your Will is validly signed and stored is essential to ensuring that the application for probate goes as smoothly and cost effectively as possible.

To ensure your Will is valid, it must be signed by you (the will-maker) in the presence of two witnesses who are not benefiting under your Will. They must physically witness you signing and must both be present together at the same time when this happens.

We’ll highlight some common issues which can cause challenges in an application for probate.

Attaching the pages of the Will together

The pages of a Will must be attached together, preferably by staples or in any other permanent manner. This helps the Court to ensure that they have the complete Will and that no one has tampered with the Will, for example by adding or removing pages.

We often see Wills that are paper-clipped, or the pages kept loose - this can make it difficult for the court to assess whether the Will is complete, or pages have been removed or tampered with as above.

Where other documents may have been attached to the Will in the past

We often see cases where the Will has been stored by the person in their home with other personal documents. This often means that other documents end up being attached or kept together with the Will.

The Court needs to be able to ensure that no other document was ever attached to the Will in the past where the will-maker may have intended it to form part of the Will. This is particularly concerning in cases when the Will had previously been stapled together, but the staple was removed, and a new staple was added. It is also relevant in cases where clips or staples on the Will or from adjacent documents have left indents or tears in the Will document.

Storing your Will

We always recommend storing your original Will with your lawyer in their secure deeds room, or at home in a safe location (if the latter, with your lawyer storing a copy). It is wise to notify your executor or close family members where the Will is stored.

Most law firms as well as Public Trust will store Wills free of charge (even if they are not named as your executor or have not prepared your Will).

Damage to your Will

It is important to ensure your Will does not get damaged, marked, or folded when it is being stored. Any marks or damage to your Will may be a reason for the Court to believe your Will has been tampered with or altered.

We recommend ensuring that your Will is stored in a protective sleeve or envelope to protect it from damage, and that it is kept flat while in storage.

What happens when a Will has been stored or signed incorrectly?

If a Will is damaged or may appear to be tampered with for reasons detailed above, the Court may request additional evidence before probate can be granted. The Court may request an extra affidavit in the probate application, called an Affidavit of Plight, to confirm the validity of the Will as intended. This adds to the legal costs for your estate.

The Court may also require evidence that the Will was validly signed, so it is useful to keep a record of the contact details of the people who witnessed it and a note recording when and where the Will was signed. We suggest storing these details alongside your Will to provide an extra layer of security in the event that your Will is damaged or the Courts consider it may have been improperly signed.

It is always recommended to seek professional advice from an asset protection lawyer when creating a Will to ensure you don’t inadvertently create an expensive problem for those left behind when you pass away.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track. 

Laurie Pallett and Raiyan Azmi