Writing a Will is one of the most important actions to take if you’re preparing for your end-of-life. It’s particularly crucial if you have any children or dependents under 18 years of age, but if you have significant assets such as property, shares, cash, personal belongings, even pets.
Ensuring your Will is valid is something to watch out for, as an invalid Will is basically the same as not having a Will at all. Keep reading to learn how to ensure your Will is valid.
What is a valid Will?
A Will is not legally valid in Australia unless it’s signed by the person who wrote the Will (Will maker or testator), in the presence of two independent adult witnesses, who will also need to sign the Will.
Both witnesses must be present at the same time that the Will maker signs the document, as it's their job to formally witness the event of signing. A Will is not a legal document if it's unsigned, or if there is only one witness.
The Will maker needs to be seen as acting freely and not be under any duress when assigning where their assets will go. They also need to be sound of mind and capable of writing the Will.
Who can witness the signing of a Will?
There are a couple of key requirements that determine who can become a witness.
- They are a legal adult, of 18 years of age or older.
- They are capable of sight, meaning they are not blind or severely vision impaired.
- They are not a beneficiary of your estate. If a spouse or beneficiary is witness to the Will signing, they could lose their portion of the estate.
What happens if your Will isn’t valid?
There are a few consequences if your written Will is deemed invalid.
If you pass away with an invalid Will, it essentially has the same effect as not having a Will in place. Passing away without a Will is known as dying intestate, which means the law determines how the estate is to be administered.
These rules of intestacy follow a hierarchy of who should benefit from the estate. As every family relationship is different, those on the top of the list may not always be the most ideal recipients of your assets.
And if you have no Will or and no beneficiaries that fit under the hierarchy, the state government is then entitled to your entire estate.
By dying intestate, it makes the probate process for loved ones much more complicated and stressful than it needs to be, especially when they are already working through their grief.
Can the validity of my Will be challenged?
Yes, the validity of your Will could be challenged or contested in court. Here are a few reasons why someone could challenge the validity:
- You were not capable of making a Will at the time you signed it.
- Your Will wasn’t created and signed according to law.
- One of your witnesses is a beneficiary of your estate.
- You were influenced by others when making the Will.
- Somebody you provide for believes you haven't left them a fair share of your assets.
If your language is vague or your intentions are not explicitly clear, your instructions may not be followed properly, or the Will could even be ruled invalid.
Things to watch out for when writing your Will.
There are a few things to be mindful of when writing your will, including any mistakes and amendments.
If you have made a mistake and need to make a change to your Will document, you’ll need to be extremely careful how to remedy it to ensure it is a valid document.
Making amendments to your Will.
A codicil is the legal term for an amendment to an existing Will. If you want to make changes to a Will after it has been signed and witnessed, it’s not as easy as editing the document or crossing a few things out and adding a note in its place. To make a codicil, it must be formally completed, signed and witnessed in the same way as a Will is executed, outlining the amendments you wish to make to your original Will.
However, it’s often safer to make a new Will altogether, as additional codicil pages may be become misplaced or separated from the original Will, particularly if you are adding multiple codicils as years go by. Additional codicils also leave room for error if they include conflicting bequests or instructions. A new Will immediately overrides all Wills prepared before it.
Thoroughly reviewing your assets.
When writing your Will, it’s easy to forget some important assets or underestimate how large your estate is. To ensure the validity of your Will isn’t questioned, make a thorough list of all your assets and make sure they are accounted for in your Will.
However, you don’t need to be super specific, as this can cause confusion or will require unnecessary updates to the Will. Example: you specify a car model and make that will to go to your son, but you sell that car and get a new one. Instead of being so specific, instead you can say: the car that is in my name.
Updating your Will as your circumstances change.
Wills shouldn’t just be written then forgotten about. Regularly reviewing and updating your Will is necessary to ensure it is valid for your current circumstances. This can be done every few years, or after a significant life change like having a child or buying a house.
How do I create a Will?
You can use Bare’s free DIY Online Will to create your own Will, which will be legally binding once it is signed with two witnesses present, who must also sign the Will.
If you need any advice or require a bespoke Will, you can give our affiliate law firm Bare Law a call on (03) 9917 3388.