A Will may be deemed invalid for a range of reasons including when it does not meet the formal signing and witnessing requirements.

If a Will is found to be invalid the Court may validate it.

If the Court does not validate the Will, the earlier Will of the deceased (or, if none, the intestacy rules will apply.

When is a Will valid?

A Will is considered to be valid if the following conditions are met:

•          The Will is in writing;
•          The Will is signed by the Will-maker;
•          The Will is signed in the presence of two witnesses that acknowledge the Will-maker signed the Will; and
•          The witnesses signed the Will in the presence of the Will-maker.

Any alterations to a Will must also be signed and witnessed by two independent witnesses.

If a Will does not comply with the formal validity requirements because it is not signed or witnesses correctly, the Will can be considered to be invalid. 

What can the Court do if the Will is invalid?

If the Will is invalid because it does not comply with the validity requirements the Court may declare it valid if it expresses the deceased’s testamentary intentions.

In order for the Court to declare a document as a valid Will there must:

•          Be a document that appears to be a Will;
•          The document must not comply with the validity requirements; and
•          The document must express the deceased’s testamentary intentions.

If these conditions are fulfilled the Court may declare the document to be a valid Will, unless there are very good reasons not to do so.

Therefore, failure to comply with the signing and witnessing requirements is not always going to mean a Will is invalid. Some documents that have been declared valid include draft Wills, emails, and instructions to lawyers.

A recent Court of Appeal case provides an example of a document being validated as a Will.

 A new Will appointing the deceased’s husband as sole executor and beneficiary was found in an easy to find spot on a desk in the deceased’s home. This Will was not signed by any witnesses so it was not compliant with the formal validity requirements.

The son of the deceased argued that she was unable to understand the Will due to her English capabilities and concerns that she was under the influence of her husband at the time the Will was made.

The High Court refused to validate the Will. However, on appeal the Will was validated even though it was not signed by any witnesses, after the handwriting was confirmed to be the deceased’s by a handwriting expert and after evidence was presented indicating that she could communicate sufficiently in English.

Getting a will validated by the Court is a complicated process and requires a big investment, so it is much better to ensure that any Will complies with all of the legal formalities than to try to fix it later. Having a professional experienced in these matters prepare and arrange the correct signing of the Will is a good investment.

 

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.

Gianna Menzies