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SIGNING YOUR WILL: WHAT IS REQUIRED?

SIGNING YOUR WILL: WHAT IS REQUIRED?

- By Margherita Russo

Signing a will is fairly straightforward, right? Just a scrawl on a dotted line? Actually, that’s not the case, not by a long shot, and some recent media attention has highlighted how confusing this issue can be. More than ever, it’s important to get legal assistance to ensure that a will is properly signed to ensure its validity.

Because sometimes, even if you’re confident that everything is correct, small technicalities can bring a will undone.

 

Executing a Will: The Requirements

Legal requirements for executing a will

In South Australia, the Wills Act sets out the legal requirements for drafting and executing a valid will. “Executing” a will means the way in which the will is signed by the will maker (the testator) and the witnesses. The legal requirements provide that:

  • A will is not valid unless it’s in writing.
  • A will must be signed by the testator or by some other person in the testator’s presence and by the testator’s direction.
  • A will must be dated by the testator.
  • By signing the will, the testator must have intended to give effect to the will.
  • The testator must sign or acknowledge their signature in the presence of two adult witnesses who must both be present at the same time.
  • Each witness must sign the will in the presence of the testator.

Issues

These requirements seem straightforward, but many different issues can arise. For example, even though some wills can consist of many pages, it is common for a testator and two witnesses to sign only on the last page.

At law, this is acceptable because there is no legal requirement that a will must be signed and witnessed on each page. If all other legal requirements have been satisfied, it will be a valid will.

But if a will hasn’t been signed and witnessed on each page, there can be uncertainty about whether all pages form part of the original document, or whether extra pages have been inserted, removed or replaced some time after the will was originally executed.

This can create confusion over the testator’s intentions. If the Court can’t work out what the testator intended to do, or if it is concerned that the testator may have executed the will under fraud, duress or mistake, it may declare the will invalid.

Invalid wills

If a will is declared invalid, the Court may treat the estate as if the testator had no will. That is, as if they died intestate. This means that it may appoint an administrator to distribute the estate.

The effect of this may be that:

  • The estate isn’t distributed according to the testator’s wishes.
  • There are increased fees and costs (for example administrator expenses and legal fees) which can erode the estate, meaning that there may not be as much to distribute at the end of the process.

An intestate estate can also increase the risk of claims being made against the estate. In some cases, they may take years to resolve.

Safeguarding against problems

These issues are concerning, but the good news is that safeguards can be put in place. At Websters Lawyers, we strive to ensure that:

  • Each page of a will is signed, properly witnessed and dated.
  • The testator and witnesses all use the same pen to sign and date a will.

The purpose is to demonstrate that all pages of the will form part of the original document and to remove any uncertainty about whether any pages were inserted, removed or replaced without the testator’s knowledge. Of course, nothing is certain, but these safeguards may help to ensure that the will won’t be invalidated.

Further information

For further information about why it’s a good idea to use a lawyer to prepare your will and about all the issues that can potentially arise, we recommend our other articles on these topics:

Making a will is necessary for most people, but it's not always straightforward, especially when there are so many technical requirements and safeguards to ensure its validity.

That’s why, for your own peace of mind, it’s a great idea to have your will prepared and signed with the assistance of an experienced wills and estates lawyerWebsters Lawyers can offer a fixed price for the preparation of a valid will that accurately reflects your wishes. This will depend on the complexity of your estate.  For more information, contact us today. Because the sooner you act, often the better off you’ll be.