For a Will to be considered legally valid it must meet the formal legal requirements contained in sections 6 and 7 of the Succession Act 2006 NSW (‘the Act’).
These laws state that a Will is only valid when:
- the Will is in writing and signed by the testator, or by some other person in the presence and at the direction of the testator, and
- the testators signature is witnessed by two or more persons, and
- at least two of the witnesses sign the Will in the presence of the testator.
Signing a Will also requires an intention by the testator (the person making the Will) to legally formalise the appointments and wishes stated in their Will. It is not a requirement, however, for any of the witnesses to have any knowledge of the Will or its contents. The role of the witnesses are to record by their own signature that they saw the testator sign the document in their presence.
Sometimes, however, a document is not signed in accordance with the formal legal requirements, but it may still be submitted to the Court for consideration as a Will.
Section 8 of the Act grants a discretionary power to the Court to dispense with the formal legal requirements for execution, or in some cases, to alter or revoke a Will.
In exercising this discretion, the Court must be satisfied the document, or part of the document:
- was intended by the testator to form his or her Will, or
- the document was intended to alter or revoke some or all of the testator’s last Will.
The Court will take into account evidence which illustrates the intention of the testator at the time of creating or attempting execution of the document.
In the case of Re Estate of Wai Fun CHAN, Deceased  NSWSC 1107, an 85 year old woman, with the help of some of her children, recorded a video purporting to alter a formal written Will executed in 2012. Whilst the formal written Will made in 2012 met the formal requirements of section 6 of the Act, the ‘video will’ did not comply with the rules as it was neither in writing nor signed by any attesting witnesses. The video will was considered by the Court pursuant to their discretionary powers and was held to be a codicil to the formal 2012 Will. The Court was convinced that the video (reduced to a transcript) stated the testamentary intentions of the testator and was made of her own free will.
The above case example illustrates the Courts acceptance of a formally executed Will and the additional legal processes required where the formal rules are not followed. Although in the above case the testator died in June 2012 not long after the video will was made, the Court did not reach a decision until August 2015. There were significant legal costs involved and it took over 3 years before the estate could begin to be administered.
Understanding the formalities required for the legal and valid execution of your Will can ensure your estate can be administered quickly and easily without exposing the estate to unnecessary litigation. During these times of social distancing (Covid-19) and restrictions on our daily movements it is extremely important to ensure your wishes can be carried out and recorded properly in a valid Will.
We can help
If you would like assistance preparing your Will or discussing any concerns you may have regarding a new Will, do not hesitate to contact Turner Freeman Lawyers on 13 43 63 or via our online enquiry form.