Written by Daniel Bennett

Too many Australians fail to properly consider whether they need a will. They assume they don’t either because the assets they have are minimal or the rules of intestacy will carry out their intentions anyway. Perhaps they may simply be afraid to actually think about the topic at all.

The answer might be no, but have you come to that answer knowing exactly what would happen when you die with or without appropriate estate planning in place? Do you know, or have you simply assumed, how the rules of intestacy would apply to your circumstances? Do you know that your superannuation does not automatically form part of your estate? What do you expect to happen to jointly owned property or bank accounts? Are you aware of what kinds of claims your estate might have to defend and who may be eligible to make such claims?

The more likely answer to the question is that you should have at least a valid will. If not only to ensure that your estate is left to those you intend and in the way you expect, but also to ensure that the decision has been made with the best taxation and asset protection strategies in mind. You might also want to avoid the unfortunate litigation that can often arise regarding burial rights and who will become the testamentary guardians of your infant children.

What are the requirements of a valid will?

In New South Wales, according to s. 6 of the Succession Act 2006 (NSW) (“the Act”) a will is not valid unless:

  • It is writing and signed by the testator or by some other person in the presence of and at the direction of the testator;
  • The signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and
  • At least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

Who can be a witness?

There are benefits having the drafting (or another) solicitor as one of the two witnesses to your execution of the will. Doing so will ensure the best chances that the formal requirements are complied with. Further, should the will ever be challenged, for example due to a lack of testamentary capacity of the testator, a solicitor ought to have undertaken the necessary steps in determining the testator’s capacity and should have files notes to that effect. In the event of contested probate proceedings that solicitor would then be a required witness in the proceedings.

That said, there is no formal requirement that a solicitor be a witness to the will in order to comply with s. 6. Your witnesses should be independent (not a beneficiary under the will or your spouse) and over the age of 18.

What if these requirements are not met?

Where a will fails to satisfy these formal requirements all hope is not lost. Pursuant to s.8 of the Act it is possible for a Court to dispense with these formal requirements where the document or part of the document in question purports to state the testamentary intentions of the deceased person and has not been executed accordingly.

There have been a number of interesting decisions as to probate of informal wills in the past few years in different Australian states, including where an unsent text message, an audiotape, a videotape or a DVD recording have been accepted by the Court as the testator’s last will ( for example, see decisions such as Cassie v Koumans [2007] NSWSC 481, Treacy v Edwards; Estate of Edwards (2000) 49 NSWLR 739 and Re Nichol; Nichol v Nichol & Anor [2017] QSC 220).

For such order to be made in New South Wales the Court must be satisfied that the person intended it to form his or her will or to form an alteration to his or her will. The Court would need to look at any evidence relating to the manner in which the document or part was executed and any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

Should I simply prepare my own informal will?

Unless your circumstances are such that you are moments from death and unable to contact a solicitor or to otherwise prepare a formal will, no.

At the planning stage and where no such dire circumstances exist, it should not be your intention to rely upon the Court’s ability to grant probate in respect of informal wills. Doing so will expose you to significant risk that your testamentary intentions are not carried out if the Court is not ultimately satisfied that such document forms your testamentary intentions due to the obvious evidentiary considerations underpinning the provision.

DIY Will Kits: Don’t do it

You may appreciate the need for a will but consider a Do It Yourself Will Kit to be the way to go. Do so at your own peril. Such approach might very well see the formal requirements of s. 6 complied with. However, in our experience, this approach carries obvious and significant risks in the event that:

  • Execution is not properly carried out, including where the will has not been properly signed in the presence of two witnesses, or subsequent changes are made to the original document after execution.
  • The executors or beneficiaries are identified incorrectly.
  • The witnesses are also beneficiaries under the will.
  • The will is lost.
  • You misunderstand what actually forms part of your estate, including with respect to superannuation and jointly owned property or bank accounts.

Contact a solicitor of our Wills and Estates Team to further discuss your estate planning needs at your earliest convenience.