When Is A Will Not Valid?
Most of the disputes about Wills fall into one or the other of two categories:
1) Someone has not been provided for adequately in the Will. (Learn more: Left out of a Will).
2) Some formality has not been complied with.
What makes a Will valid in NSW:
- It is expressed to be a will;
- It’s in writing;
- Each page is signed by the testator. This is the person who made the Will;
- Each page was signed by two witnesses;
- All three people saw each other sign.
Important Information about invalid Wills
If the testator is blind, illiterate or for some reason cannot sign, someone can sign for them, so that problem can be overcome, providing the proper wording is used, and the Will read out to the testator in the presence of the witnesses.
The witnesses to any Will must not be beneficiaries (people who will benefit under the will) or be related to beneficiaries.
This is to ensure that the witnesses are independent. From a practical point of view, it is preferable if the witnesses provide their names and addresses on the document in case they may be needed in the future.
Laws now permit courts to recognise Wills which may not meet all the requirements if the court is satisfied that a document does actually represent the testator’s intentions. But we advise you to ensure a Will is valid. This can avoid complications down the road.
One common oversight is to make a bequest to a person, and not provide for what is to happen if that beneficiary does not survive the testator. There will be an asset or money not dealt with unless a proper provision is made.
Another common problem is being too specific with assets. In one such case, a father’s Will left “my Ford car to my son and my Toyota to my daughter.” When Dad died he had traded in his Toyota for a Mazda, so dear daughter did not get a car! Apart from items such as family heirlooms, artwork or jewellery it is usually preferable to provide for amounts of money or percentages.