Wills are legally binding documents that set out your wishes for who will, after your death, inherit your property, care for your children if they are not over the age of 18 years at the time of your death, and manage your property after your death to ensure that it is distributed according to your wishes.
Why Create a Will?
Talking about making a will and arrangements for when you pass away can be a difficult conversation to have. However, engaging in these conversations and creating a will after talking to a qualified professional, such as a lawyer, can provide you with certainty and peace of mind knowing that your wishes have been recorded in writing and likely will be carried out after your death.
If you do not have a will at the time of your death, you have died ‘intestate’ and your property will pass to people in accordance with the ‘rules of intestacy’. This introduces uncertainty in the management of your affairs after your death. It may also mean that your wishes are not carried out and your property may pass to people who you do not wish to receive your property.
The Language of Wills
The testator (or testatrix if female) is the person who makes the will and who is the subject of the will.
The estate of the testator is all the property the testator or testatrix owns, including land and possessions.
A beneficiary is a person who receives a gift or benefit under a will, such as if they inherit property.
The executor of a will is the person appointed by the testator or testatrix in the will to manage the distribution of their estate after their death. They are under a duty to administer the estate properly.
Requirements for the Creation of a Will
Given the serious consequences arising from the creation of a will, the law has imposed several requirements that need to be satisfied in order for the law to recognise a will as valid.
The testator or testatrix first must have ‘capacity’ to make a will. They must be over the age of 18 years, unless they are or have been married, or the Court authorises a will to be made: Succession Act 2006 (NSW) s 5. They must also be of ‘sound mind’, which means they are able to understand the effect of the will on the property the subject of the will: Banks v Goodfellow (1870) LR 5 P & D 549. While they do not need to know of every individual item of property the subject of the will, they must understand what they are giving away under the will: Kerr v Badran [2004] NSWSC 735.
The testator or testatrix must have intended the will to operate as their will. This requires the testator or testatrix to intend that the will operates on their death as their final disposition: Estate of Knibbs [1962] 2 All ER 829. This intention is usually obvious because of the solemn and formal language used in a will but there may be circumstances where the intention is missing. For example, if a ‘will’ is made as a joke, the ‘will’ will not be considered as valid: Nichols v Nichols (1814) 161 ER 1113.
The testator or testatrix must have knowledge of and freely approve the provisions in a will. For example, if there is fraud or undue influence (which requires coercion and does not arise if there is merely persuasion), a will is considered to be invalid: e.g. Winter v Crichton (1991) 23 NSWLR 116.
In addition, there are requirements for the form of wills under the Succession Act 2006 (NSW). The will must be in writing and signed, with the intention of executing the will, by the testator or testatrix, or another person in the presence of and at the direction of the testator or testatrix: Succession Act 2006 (NSW) ss 6(1)(a), 6(2). The signing of the will by the testator or testatrix, or their representative, must also be in the presence of two or more witnesses, who must attest and sign the will in the presence of the testator or the testatrix: Succession Act 2006 (NSW) s 6(1)(a). However, some formalities may be dispensed in the case of privileged testators or where the Court provides their consent for this.
How We Can Help
At Valorum Law Group, we can assist with the creation, alteration, revocation and revival of wills as well as other documents such as powers of attorney, enduring guardian appointments and advanced healthcare directives. We can also assist with estate plans, including creating testamentary trusts, and can provide advice and representation in legal claims relating to wills and estates.
We recognise that these matters may be sensitive and uncomfortable so we undertake all work with respect and dignity so that you feel as comfortable as possible during the process.
If you have any queries, please do not hesitate to contact us at admin@valorumlaw.com.au or voregan@valorumlaw.com.au. Our expert wills and estates lawyers are on hand to provide advice on wills as well as other wills and estates matters and legal claims.
The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.
Contributors: Harry Chen
