Signing A Will in NSW

Signing A Will in NSW

Signing A Will in NSW

Signing a will may seem straightforward, but one small incorrect detail may affect your legal document, and your will may become invalid. This could mean that your estate may not be distributed to beneficiaries as per your wishes upon your death. Find out the correct requirements to execute your will legally, what makes a will become invalid and who is eligible to be a witness. Let’s take a closer look.

Procedure For Executing A Valid Will

Executing a will is the process of signing the will by both the will maker (testator) and the witnesses whilst complying with all the legal rules. Each state has specific legal requirements for drafting and executing a will. In NSW, wills are governed under the Succession Act. Wills are potentially one of the most important legal documents signed during a lifetime. It is essential to understand the process to avoid potential problems:
  • The testator should read and understand their will before signing to ensure they are happy with the will’s contents.
  • No attachments are permitted with either staples, paper clips or pins.
  • The will must not have any alterations made after the signing is complete.
  • The will maker must sign in the presence of two witnesses.
  • In some states of Australia, the two adult witnesses must not be beneficiaries of the will.
  • Any copies of the will should not be signed but instead marked “copy” to avoid mistaking it for the original version.
  • The witnesses don’t need to know the contents of the will.
  • Ensure that previous copies of wills are clearly marked “replaced by will dated .. “to avoid your executor accidentally obtaining the wrong copy of the will.

How To Sign A Will

It is crucial to ensure that your will is signed and witnessed correctly; otherwise, it may become invalid.
  • The will maker and witnesses should sign at the bottom of every page. This ensures that no extra pages have been inserted or removed at a later stage.
  • Witnesses should print their names and addresses under their signatures.
  • Any alterations need to be initialled by the testator and witnesses.
  • The will maker and witnesses should use the same pen, black or dark blue, to sign the will to prove they were together at the time of signing.
  • Both the will maker and witnesses should all sign immediately after each other to ensure the will is validly executed.
  • It is vital to double check every page to ensure it has been signed.
An attestation clause may feature in a will to record how the will was signed and witnessed. For example, if the will maker can not read or write, then the attestation clause would state that the will maker was unable to sign or read the document. Someone would read the will to them, and they would make a mark instead of signing the legal document.

Who Can Be A Witness?

The legislation that governs who can witness a will varies depending on which state In Australia you live. In Western Australia, South Australia, Victoria and the ACT, a beneficiary named in the will can act as a witness only if they meet the other requirements. In the Northern Territory, New South Wales, and all other states, a witness is not allowed to be a beneficiary of the will. In these states, an executor or relation is also exempt, which could also preclude your spouse or partner. There is no requirement for an official person to sign your will, like a JP. Witnesses must be an adult over 18 years of age and have the mental capacity to give evidence in court. As well as being mentally competent, they also need to be able to see the will maker signing, which means that a blind person may not act as a witness. You should check with your lawyer to find legal advice relevant to your state of residence.

Why Do Wills Need A Witness?

Legal requirements across the country state that a will is not valid unless signed in the presence of at least two witnesses. A will must be valid for the wishes to be adhered to when administering the deceased estate. The purpose of signing a will in front of witnesses is to help prevent forgery and fraud. Witnessing the signature confirms that it is genuine.

What Is A Virtual Witness?

With social distancing rules in place for Covid, signing a will in the presence of two witnesses has become more complex. In some states of Australia, emergency regulations have been introduced to permit video conferencing technology to sign and witness a will to ensure that people can make valid wills whilst still complying with social distancing rules and regulations.

Making Wills Valid

Creating a valid will is essential as it ensures that your assets will be distributed to your loved ones as you requested and that they are aware of your wishes when you pass. To execute a valid will, you should follow several legal requirements;
  • The law states that a will must be in writing, either handwritten or typed, to be valid
  • The will maker must sign the will. If they are unable, then another person must sign it in their presence
  • Two witnesses must be present when the will maker signs the document and must both sign the will
  • The testator must date the will
  • The act of signing the will means that the will maker intends to give effect to the will
When making your will, the legal requirements must be adhered to ensure its validity. Obtaining advice and legal assistance from experienced estate lawyers can help provide peace of mind, ensure your will’s validity and accurately reflect your wishes.

What Is An Invalid Will?

In New South Wales, if a will does not comply with each legal requirement as stated in the Succession Act, it will be considered invalid. Something as simple as a missing signature or only one witness can invalidate a will. When a will is contested in court, the way it was signed and witnessed will be questioned; the will must be properly signed by two or more witnesses correctly to remain valid.

What Are The Consequences Of An Invalid Will?

Having an invalid will can cause problems for the beneficiaries of the original will. It means that the estate may not be distributed as per the intended wishes of the deceased. Instead will fall under the intestacy law and be managed by an independent administrator instead of a family member. If members of the family were estranged from the deceased and were not listed in the will, they might end up receiving a portion of the estate as next of kin. There may be additional costs involved if an administrator manages the estate. It is also more likely that claims will be made against the estate, which can delay the final distribution of the estate to beneficiaries.

Informal Wills

An informal will is a document that does not comply with the requirements to be a valid will but still records the testamentary intentions of the will maker. In some circumstances, the Supreme Court of law may allow the document to be accepted as the person’s will. Factors will be considered, including; the will maker’s intent, details of their intentions for distributing their estate and type of document, such as a video recording or document on a computer. Whilst the Interpretation Act legislation exists, it is not recommended to execute your will in this manner as compliance with formal requirements is the only way to ensure that the intended wishes of the maker will be upheld upon their death.

Where Can You Execute Your Will?

Depending on the circumstances, a lawyer would generally have the signing and witnessing of clients’ wills at their place of business. On some occasions, they may be able to attend their clients’ hospital or care home if required.

Storing The Will

After you have made your will, you must store it in a safe place, which may be with your lawyer or bank. You should keep a copy of your will with your personal documents and information about where the original is stored. Notify your executor in advance to let them know where your last will is kept.

Summary

Each state has specific legal requirements for drafting and executing a will. It is crucial to ensure that your will is signed and witnessed correctly; otherwise, it may become invalid. Having an invalid will can cause problems for the beneficiaries of the original will. It means that the estate may not be distributed as per the deceased’s wishes. The will maker must sign in the presence of two witnesses. A witness needs to be an adult over 18 years of age. In some territories and states of Australia, a beneficiary is not permitted to be a witness. The will maker and witnesses should sign at the bottom of every page. This ensures that no extra pages have been inserted or removed at a later stage. After you have made your will, you must store it safely. This may be with your lawyer or bank. When making your will, the legal requirements must be adhered to ensure that you execute a valid will. Obtaining advice and legal help from lawyers who specialise in estate law can help provide peace of mind, ensure your will’s validity and accurately reflect your wishes.

FAQs

1. Who Can Legally Sign A Will?

A witness needs to be an adult over 18 years of age, and they must have the mental capacity to give evidence in court. They also need to physically see the person signing, which means that a blind person may not act as a witness. In some territories and states of Australia, a beneficiary is not permitted to be a witness, such as Queensland, Northern Territory, New South Wales and Tasmania. In these states, an executor or relation is also exempt, which could also preclude your spouse or partner. But some states, like South Australia, Victoria, Western Australia and ACT, a beneficiary can also be one of the attesting witnesses. It is crucial to ensure that your will is signed and witnessed correctly; otherwise, it may become invalid. If you are unsure about your states’ legislation regarding the witness beneficiary rule, you should seek legal advice.

2. Do Witnesses Have To Be Present For Will Signing?

The will maker must sign in the presence of witnesses, and the witnesses and testator should use the same pen, black or dark blue, to sign the will to prove they were together at the time of signing. With social distancing restrictions in place for Covid, the signing of a will in the presence of two adult witnesses has become more complex. In some states of Australia, emergency regulations have been introduced to permit video conferencing technology to sign and witness a will to ensure that people can make valid wills whilst still complying with social distancing regulations. Check with your lawyer to obtain legal advice relevant to your state of residence.

3. How Must A Will Be Signed?

Accurately signing and witnessing a will is crucial, as only an adequately witnessed will can be accepted in a court of law. The witnesses and the will maker’s signature must be present at the bottom of every page to ensure that no additional pages have been inserted or removed at a later stage. The will maker and witnesses should use the same pen, and any alterations need to be initialled by both parties, and double check that every page has been signed.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with Wills or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

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