A Will that complies with the formal requirements of section 6 of the Succession Act 2006 (NSW) (‘SA’) will be admitted to Probate in the equity division of the NSW Supreme Court.
Who Can Make A Will?
Only a person over the age of 18 can make a valid Will unless:
(a) A minor makes a Will in contemplation of marriage;
(b) A minor who is married may make, alter or revoke his/her Will;
(c) A minor who was married may revoke whole or part of his/her Will that was made while he/she was married.
Elements of a valid will
Section 6(1) SA provides that a Will is not valid unless:
(a) It is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator (enduring power of attorney); and
(b) The signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and
(c) At least 2 of those witnesses attest (certify the truth) and sign the Will in the presence of the testator (but not necessarily in the presence of each other).
Section 6(2) SA provides that the signature of the testator must be made with the intention of executing the will, but it is not essential that the signature is at the foot of the will.
NOTE: Under section 10 SA, the receipt of a beneficial disposition under the Will by the interested witness will fail (witness-beneficiary rule), unless the following three circumstances can be established:
1. Two other people who are not interested witnesses attest to the execution of the Will; or
2. All persons who directly benefit from the avoidance of the disposition consent in writing to the distribution of the gift under the Will; or
3. The Court is satisfied that the testator knew and approved of the disposition and it was given or made freely and voluntarily pursuant to his/her testament.
What Constitutes Writing
Pursuant to section 21 of the Interpretation Act 1987 (NSW), writing includes any way of representing or reproducing words in visible form. In Estate of Slavinskyji (1998), the deceased wrote his Will on the wall of his home in the presence of his neighbours. On an envelope, he wrote the name of another beneficiary and placed it in a crack of the wall. The Court dispensed with the formal requirements of a valid Will and admitted the writing to Probate (see dispensing powers post) because the circumstances and words used by the deceased left no reasonable doubt that he intended the writing to constitute his final testamentary wishes.
At Platinum Lawyers, we have highly experienced solicitors who are able to assist you with your will preparation. If you would like us to engross a will that effectively expresses your testamentary wishes, please do not hesitate to contact us on (02) 8084 2764.
