Everyone must have a legitimate Will in place, regardless of how little or big their estate is.
Many people elect to create their own Wills or use a template “Will Kit,” believing that doing so will save them the cost of hiring an estate lawyer to assist them with the process. However, suppose a Will is not correctly signed. In that case, an Executor appointed under the putative Will document will face significant expenses and problems in executing the tasks specified in a deceased individual’s Will.
The Legal Requirements for Signing a Will
A Will should adhere to the legal criteria for executing a Will, as outlined in Section 6 of the Succession Act 2006. (NSW). If none of the conditions listed below is satisfied while creating a will, the court may rule that the Will is invalid, and the estate will be handled as if there was no will (as an intestate estate). The following conditions must be met to create a valid Will:
- It must be written down, either typed or handwritten.
- It must be signed in the presence of and under the supervision of the will-maker or by another person.
- The will-maker’s signature must be made or recognized in the presence of two or more witnesses at the exact moment.
- At least two of those witnesses must testify and sign the Will in the Will-maker’s presence.
- The will-maker’s signature or other persons signing under the direction and presence of the will-maker must sign with the explicit intention to execute the Will’s contents.
- The will-maker doesn’t need to sign at the bottom of the will. An attestation provision is not required in every will.
Also, the witness does not need to be aware that they are witnessing the will-maker’s Will. Furthermore, for a Will to be legal in Australia, you also must mind other specific rules. These may vary by state, but one of the most crucial criteria is that the will-maker is 18 years old and comprehends what they are doing (have testamentary capacity).
What Happens if a Will is Not Properly Signed?
Suppose a Will is not signed appropriately (for example, the document is not signed by the testator or is not witnessed correctly). In that case, the document will not be recognised as a Will, and the person attempting to function as the Executor will have difficulties in:
- being acknowledged as the authorised person to deal with and manage the deceased individual’s estate;
- gaining access to and collecting the deceased’s assets (including bank accounts, shares, Superannuation, and Life Insurance money);
- dealing with real estate held in the deceased’s name; and
- settling estate debts and transferring assets to designated Beneficiaries
In some instances, the Executor designated under the supposed Will may be required to apply with the Supreme Court to demonstrate that the document was meant to represent the deceased’s final Will and Testament.
This process is known as “Informal Will Application”. It permits a document to be recognized as a legitimate Will (or revocation of a Will) of a deceased person even though the formal conditions have not been met.
Making a will is required for most people, but it is not always simple, especially with so many technical requirements and protections to assure its legitimacy. That is why, for your peace of mind, having your will drafted and signed by an experienced wills and estates lawyer is a good idea.
Here at Bickell and Mackenzie, you can rely on us to assure the legitimacy of your wills. Our office has a team of legal experts who deal with wills and estate in Redland Bay regularly. Ring us for some proper legal assistance today!