A will is a legal document that outlines a person’s instructions and/or wishes for their care of children and management of their estate once they are gone. As part of this, the document must comply with the legal requirements of executing a will in NSW as referenced in section 6 of the Succession Act 2006 (NSW) for it to be valid.
If the requirements of section 6 are not met, the court may consider the will to be invalid leaving your estate to be dealt with as if there were no will (as an intestate estate).
A will is deemed to be invalid unless it adheres to the following:
- It must be in writing – whether this is handwritten, typed, or printed. It must also be signed by the will-maker or by someone directed by the will-maker and in the presence of the will-maker.
- The will-maker’s signature (or person who is signing on behalf of the will-maker at their direction) must be witnessed by two other people (over the age of 18) at the same time, who also need to sign the will.
- The will-maker must be present to the signing of their will by the two witnesses.
- The will-maker must understand and approve that they are signing with the intention of creating a will.
A will may include an attestation clause which formally sets out circumstances in which the will-maker signed the will in the presences of his/her witnesses. It is generally seen as best practice to include such a clause at the foot of a will, however it is not a requirement.
It is important to note that even if a will does not meet the requirements of section 6, the court may still deem a “will” to be valid if it is proven that the will was the deceased person’s last testamentary intentions pursuant to section 8 of the Succession Act 2006 (NSW). There are circumstances when the Court may dispense with the formal requirements for the execution, alteration, or revocation of a will.
Putting aside the requirements of section 6 of the Succession Act 2006 (NSW), there are other reasons as to why a will could be considered invalid in NSW and why people might look to challenging its validity. Some key circumstances people may contest the validity of a will include:
- The will-maker did not have requisite capacity to sign his or her last will.
- The will-maker did not understand the effect or approved of the contents of their will.
- The will-maker was unduly influenced in some way to create the will.
- Fraud, forgery, or suspicious circumstances were involved.
Reach out to our team today to assist with your will creation or estate planning documents.
Alternatively, if you are looking for assistance in challenging a will, regarding disputing the validity of the will, book in a free first assessment with us today.
Please note – the information in this article relates to the law in New South Wales and is general information only. It should not be construed as legal advice.