Navigating legalities associated with wills and estates can be tricky. We spoke with Rebecca Healy from Nevin Lenne Gross barristers and solicitors to find out more.
What are the key elements of a legally valid will in Australia?
There are six key parts to ensure a will is legally valid and can be admitted to probate, thereby giving effect to the testator’s wishes regarding the distribution of their estate after death.
1. Writing and Signature: The will must be in writing and signed by the testator (the person making the will) or by another person in the presence of and at the direction of the testator. The signature must be made with the intention of executing the will.
2. Witnesses: The testator’s signature must be made or acknowledged in the presence of at least two witnesses who are present at the same time. These witnesses must also attest and sign the will in the presence of the testator, although not necessarily in the presence of each other.
3. Intention: The testator must have the intention that the document will take effect as their will at the time of signing. This includes the intention to make a revocable disposition of their property effective upon death.
4. Age and Capacity: While certain exemptions exist, generally the testator must be at least 18 years old and have the mental capacity to understand the nature and effect of the will.
5. Compliance with Formalities: The will must comply with the formal requirements set out in the relevant state or territory legislation. This includes specific provisions for the execution of wills, such as the use of electronic signatures and remote witnessing procedures introduced during the COVID-19 pandemic.
6. Alterations: Any alterations made to the will after its execution must also comply with the formal requirements, including being signed and witnessed in the same manner as the original will.
What happens if someone dies without a will in Australia?
When someone dies without a will in Australia, they are said to die intestate. The distribution of their estate is governed by intestacy laws, which vary by jurisdiction (each state).
The surviving spouse may not take the whole estate if there are surviving children, parents, siblings, or children of siblings, unless the estate’s value is below a prescribed amount. Some jurisdictions also give the surviving spouse special rights to the matrimonial home or household chattels.
It is critical for this reason to make a Will, even if you believe “well I don’t own anything” or “my affairs are simple, and everything will just go to my partner or my children”. That is simply not necessarily the case.
What are common mistakes people make when drafting a will, and how can someone ensure their will is difficult to challenge?
Common mistakes people make when drafting a will in Victoria include failing to comply with formal requirements, such as proper execution and witnessing, and not clearly expressing their intentions or obtaining legal advice when considering drafting their Wills to ensure that their wishes are legally possible to draft and enforce in Estate administration.
Another common mistake is not considering the testator’s testamentary capacity and ensuring they understand and approve the contents of the will. The presumption of testamentary capacity arises when a will is rational on its face and duly executed, but this can be challenged if there are suspicious circumstances. Therefore, it is essential to ensure the testator is of sound mind and fully comprehends the will’s contents.
Ensuring that the will is clear, precise, and free from errors is also important. Any ambiguities or mistakes in the will can lead to challenges and potential litigation. Therefore, it is crucial to obtain specialist advice, review the will thoroughly and rectify any errors before execution.
In relation to preventing a further provision claim against your Estate, it is important to obtain considered legal advice as to your specific circumstances.
