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Estate Planning, Wills

Valid Wills and Property Distribution

A valid Will provides assurance that your property will be distributed in accordance with your wishes once you have died. While there is always the possibility that a Will may be contested, it is far less likely that any claimants will succeed if your Will is properly drafted and executed.

Generally, for a Will made in New South Wales to be valid, it must take the following form:

· Be made by a person who is at least 18 years of age (unless a person under the age of 18 years is married or is contemplating marriage, or a Court authorises them to make a Will);

· Be in writing;

· Be signed on each page by the person making the Will;

· The Will-maker’s signature on each page of the Will must be witnessed by two adult witnesses who are not beneficiaries under the Will, indicated by the witnesses also signing each page of the Will; and

· The Will-maker must also witness the witnesses’ signatures on each page of the Will.

If a Will is not in the proper form, it may be an informal Will, but only with the approval of the Supreme Court of New South Wales, which can be a costly and inconvenient exercise, particularly if the application is defended by another interested party.

This issue about the validity of Wills has resurfaced in a number of recent cases before Australian Courts in different states:

1. In the matter of The Estate of Drummond; Drummond v Drummond [2017] NSWSC 856, a document entitled “Discussion with [deceased] 22.3.2016 WILL” was not considered to be an amendment to the previously made formal Will of the testator. The Court considered that the testator was familiar with will-making and so the incomplete nature of the document, the fact that it was only witnessed by one witness and that it was inconsistent with the testator’s usually meticulous character indicated that the testator did not intend the document to be a testamentary document.

2. In Re Estate of Annie Margaret Kent (Dec); ex parte Bonker [2017] WASC 239, an unsigned Will was not found to be a testamentary document. Over the course of about five months, the testator gave instructions for a Will to be prepared, but then made a number of excuses to not execute the Will, so that she died before executing the Will. The Court thought that her increasingly weak excuses for not signing the Will indicated that the Will did not contain her testamentary intentions.

3. In contrast, in the matter of Re Nichol; Nichol v Nichol [2017] QSC 220 (17/219), the testator made a draft text message on his mobile phone prior to his suicide, which purported to be his Will. The text message was never sent and was obviously not executed correctly or witnessed. The text message Will left everything the testator owned to his brother and nephew, instead of his estranged wife and son. Eventually, the Court found that the unsent draft text message did constitute the testator’s Will as the evidence indicated that he had intended the message to contain his testamentary intentions, including that he committed suicide shortly after writing the message and that he had separated from his wife only days prior.

It is vital that a Will be drafted and executed properly. If you would like assistance to draft a Will, do not hesitate to contact us.

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