The formal requirements for making a will by
Chris Hill-Smith of Appleton Law, Lambton There are certain formalities which are necessary to ensure that a will is valid and will be admitted to probate. The formalities are necessary to minimise fraud, forgeries and the influences of undue pressure by others. A document complying with the formalities also provides evidence of the testamentary intentions of the person making the will. A will made in another country will be valid in NSW if it complies with the will formalities applying in that particular country. In NSW, for a will to be valid it must be in writing.
A new solicitor in Elder
St, Lambton
ing areas of law: We focus on the follow Powers of Attorney ■ s ate ■ Wills and Est es ■ Family Provision put ■ Probate ■ Will Dis law and We also offer criminal ing services. anc vey con l ntia ide res le at our office Appointments availab . you to e com can or we Hill-Smith ris Ch or, icit sol al cip Prin practice al leg of rs yea has many ard forw ks experience, and loo . you g istin to ass
ton 122 Elder Street Lamb 113 700 ph: 4956 1902 or 0422 law.com.au email: admin@appleton .com.au web: www.appletonlaw
Page 20 > Lambton Local > May 2016
The writing may be of words but equally the writing may be of figures, symbols, drawings or ‘in code’ provided the writings are capable of being deciphered. The writing, as is usual, will be on paper, but in one well known case the testator wrote his will on an empty egg shell, and in another more recent matter, the will maker wrote his will on one of the walls in his home. Fortunately photographs of the will were able to be admitted as evidence of the will rather than having to take the wall to court! The will must be signed by the testator. The signature may be the person’s usual signature or it may be a mark, a thumb print or even a phrase which sufficiently identifies the testator, such as “your loving father”. When the testator is physically unable to sign their name or they are illiterate, another person may sign for them as long as they are present with the testator and sign at his or her direction. The signature must be made by the testator with the intention of authenticating the will. That is, that they are adopting the document as their will and they are signing the document to confirm that. There is no requirement that the signatures be at the end of the will however it is preferable because it obviously assists the court to be satisfied that there have been no changes to the will after signing. The final formal requirement is that there must be present with the testator while he or she is signing the will two or more witnesses who are present together and who each see the testator sign the will. The witnesses must then sign the will, attesting the signature of the testator. In a situation where the formalities have not been complied with, a will may still be admitted to probate as an informal will if three requirements are met. Firstly there must be a document, secondly the document must appear to embody the testamentary intentions of the testator, and thirdly, the court must be satisfied that the testator intended that particular document to be their last will. Disclaimer: The content of this article is provided for information purposes only. The contents do not constitute legal advice and should not be used as such. Formal legal advice should be sought in particular matters