Writing a Legal Will
Formal requirements for a will
In general a will in order to be valid needs to comply as follows:
- The will needs to be in writing (it is usually typed but can be handwritten);
- It must be signed by the person whose will it is to be;
- Two (2) witnesses (present together at the same time) must see the testator sign the will (they don’t have to have read the will or know it’s actual contents); and
- those two (2) witnesses must also sign their names to the will (and do so in the presence of the testator).
In some limited circumstances the Supreme Court may recognise a will if there has not been strict compliance with the rules set out above. Expert legal advice is needed and every care must be taken not to have the problem occur in the first place. There is no guarantee that the Court will excuse any particular failure to comply and in such circumstances the will will be deemed to be invalid.
Which will do I use if there is more than one will?
Where there is more than one will it is the one made last that is the one you apply for probate of. Generally a subsequent will contains a provision revoking all previous wills. If you have any queries about whether a document is or is not a will seek expert legal advice.
The witnesses to the will
There is no special qualification needed for a person to be a witness. Any person can be a witness. The important thing is that the person understands that he/she was being asked to be a witness to the will. The witness should not be a beneficiary named in the will, the husband or wife of a beneficiary of an executor.
If the will was executed in a foreign jurisdiction, it is taken to be properly executed and therefore legally valid in Australia, if it’s execution conforms to the law in force either where it was executed in the place which was the testator’s domicile or habitual residence either at the time the will was executed, or at the testator’s death, or the place of which the testator was a national, either at the date of the execution of the will or at the testator’s death.
A legally valid foreign will would enable the executor(s) to apply for probate to distribute the assets in the state in which the asset was located or held.
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