Do I Hold a Valid Will? Understanding Will Law

A Will is a legal document detailing whom and how you want your assets to be distributed upon your death and must nominate a person or persons (“Executor”) to be responsible for following the terms of your Will. Despite a Will being one of the most important documents that you hold, it is alarming that current statistics show that almost one in two Australians do not hold a valid Will. Australians may very well believe that they hold a valid Will, when in fact they do not. Thus, the question every Australian should be asking themselves – Do I hold a valid Will?

Legislative Requirements

Pursuant to Division 2, Section 7 of the Wills Act 1997 a Will is not valid unless – It is in writing; It is signed by the will-maker, otherwise known as the testator; The signature is made by the testator in the presence of two or more witnesses at the same time; and The Will is not witnessed by any party named in the Will.

Amendments

It is very important to note that a manual amendment to your Will is not sufficient. You cannot just cross out an Executor and hand write in another one – all steps as above are required! If you wish to make a minor change to your Will, you do not have to have your entire Will redone. You can have prepared, what is called a codicil. A codicil is an additional document added or appended to an existing Will for the purpose of making a minor change, amendment or alteration. It is important to note that to be legally valid a codicil must be signed and witnessed in the same way as for a Will. If it is the case that the testator wishes to make a large number of changes to their Will, it would be more appropriate to make a new Will to avoid overlooking any inconsistencies between the Will and the codicil.

DIY Will Kit

You may have attempted to save money by completing a Will Kit from the Post Office. It is not legally recommended to do this as there is a large risk that a Will made using a standard Will Kit is invalid. The Kits are not flexible and do not take into account individual circumstances. There is a recent decision from the Supreme Court of Queensland where the Court refused to identify a Will Kit Will as valid for numerous reasons including the fact that the documents were not properly signed and witnessed and the distribution of the testator’s assets were unclear. The Court found that although there may have been an intention to execute a Will, the details and terms of the Will were too unclear and vague to ascertain what the couple intended. Thus holding this to be an invalid Will.

Text messages

The case of Nichol v Nichol [2017] QSC 220 is represents a set of tragic circumstances for both the Deceased and his family, and acts as a timely reminder that having a valid Will in place can minimise the pain and troubles experienced by loved ones throughout the estate administration process. The deceased did not have a valid Will and left an unsent text near his body which was argued by his family to be an informal will. The Court ruled in favor of the Deceased’s brother and nephew, and accepted the Text as the informal Will of the Deceased, finding that:
  • The Deceased possessed testamentary capacity;
  • The Text satisfied the definition of a document; and
  • The Text set out the Deceased’s testamentary intentions.
  • This case solidifies the point that having a valid Will can not only minimise significant expenses being incurred by an estate but also as reduces the emotional trauma that litigation can have on families.

Death without a Will

If a person’s property is not disposed of by a Will when they die, that person has died intestate and the laws of intestacy apply. Intestacy can occur if the person does not have a will, if their will is not valid or if their will only disposes of some of their property. As of 1 November 2017, new legislation deals with the distribution of your assets if you die without a Will or if you die with a Will that is not valid after 1 November 2017. The law has changed significantly in this area, thus making it more important than ever to have a valid Will. Click here for more detail! On this basis, it can be ascertained that holding a valid Will is imperative to ensure that your assets are distributed to your best wishes upon your death. Here at Argent Law, we pride ourselves in ensuring our clients are provided with the comfort of knowing their hard earned assets will be disbursed as per their Will. Unsure if you have a valid Will? Now is your time to check!

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