Making a will is assumed by many to be a simple process, however, it is very important that you ensure your will is valid. The law surrounding wills is complex, and unless you know exactly what’s required, you may be making a will that is invalid.
To be valid, it has to fulfil legal requirements and effectively address all aspects of your property and assets. A will contains information regarding how your estate will be distributed once you pass away, who will look after any minor children, your wishes for your funeral and other final wishes you may have. If your will is deemed invalid, your wishes may not be followed.
Requirements for Making a Will
The main requirements for a will fall under the sub-headings of capacity, intention, knowledge and formalities. Firstly, capacity includes the capability of the will-maker. The person must have the ability to know and understand the will and be able to make a will. They also must be 18 or over. However, if you are a minor and wish to create a will, you can seek court approval as you may already have important assets in your name; often the case where a minor has received an insurance payout, for example. Having capacity mainly surrounds the idea of understanding the will, the purpose of the will, the contents of the will and your wishes regarding your assets.
For intention, you must intend to use your will to organise your assets in the event of your death. Your intent for creating, amending or revoking your will must be clear. This is also known has having testamentary intentions. Another part of having a valid will is creating your will without pressure or force from someone else; your will should be clearly and freely your own.
For a will to be valid, you must understand what you own. When making a will, you should list your assets and what you’d like to happen with each asset when you die. You must be able to read the will document, understand and approve the contents of it, and be satisfied that it contains your final wishes. You must also understand that the document itself is a will, and what this means. Of course, the number and the size of assets we own throughout life changes as we buy and sell houses, cars, furniture, jewellery and other items. So it’s important to update your will regularly to reflect these changes.
Finally, there are the legal formalities of a will document. The formal requirements for the execution of a Will in Queensland are set out in section 10 of the Succession Act 1981.
Your will must be in writing and must be signed by you. You must sign your will in the presence of at least two witnesses who will also sign to state that you have signed correctly. By signing your will, you have confirmed that you understand and approve of the contents of your willl and wish for it to be finalised. It is also very important that you date when your will has been signed. Keep in mind that those witnessing your will should not be anyone receiving anything from your will, therefore no beneficiaries are allowed to witness. The signatures must be at the end of the will and if the will is amended or changed in any way, the signature process must occur again.
If you haven’t completed these steps, you may have what’s known as an informal will. Where there is an informal will, often the court must decide whether to grant probate for an informal will.
Since 2006, suicide notes, computer files, audio recordings, unsigned handwritten notes and DVD recordings have been declared as wills. When making a will, it’s best to be thoughtful about making a document that is as clear as possible – requiring a court to interpret your last wishes is often time-consuming and costly.
Making a Will that is Challenged
A will can be challenged if it has not been signed or witnessed, if the person writing the will was unsure and unaware of what he was signing too or writing and even if they had not intention of making a will. A will can also be challenged if they did not know what was said or approved of what was said within the will. In some cases, the person may be pressured into signing the will or the signature was forged. There are many more instances in which a will can be challenged, hence why it is so important to ensure that you have created your will correctly.
If you are unsure on how exactly to write a will or what assets to include, it is best you seek legal advice. You can begin by seeking legal advice here. It is always more cost-effective to obtain legal advice about making a will, rather than waiting until it is too late and your loved ones find themselves embroiled in a court battle.