Declaring a document to be a valid Will

A man died unexpectedly, without a Will.  He left a handwritten letter addressed to his family, in which he said who he wanted to manage his affairs after his death, and who was to inherit his property.  The letter was signed and dated.  However it did not meet a key legal requirement to be considered a Will – the will-maker’s signature had not been witnessed by two people present at the time of signing.

The man’s family felt that the letter was his last Will and Testament, and applied to the Court to have it declared as a valid Will. 

The Court was satisfied, based on the document and the surrounding evidence that was presented (including evidence of statements made by the man during his lifetime about his intentions after death), the letter was a valid Will. 

The Court has the power to declare that a document is a valid Will, even where it does not comply with the legal requirements of a Will.  Those requirements are that:

• A Will must be in writing;
• The will-maker must sign the Will (or have another person sign on their behalf in their presence, if unable to do so themselves);
• At least two witnesses must be present when the will-maker signs, and sign to acknowledge that they witnessed the will-maker sign (or another person sign on their behalf if applicable). 

Although the Court has this power, it is strongly recommended that you see your legal advisor to make a Will rather than preparing something without legal advice, because of the risks involved. 

Unfortunately it is not uncommon for a document made by a person without the assistance of a legal advisor to be invalid, or to cause significant problems after the person’s death. Sorting out such problems can be the cause of long delays in distributing an Estate, and can create significant extra expense. 

Taking legal advice ensures that your Will complies with the legal requirements, and also that it is best suited to your particular circumstances.