It is important that your will is written and executed to comply
with the requirements as prescribed under the Succession Act 2006
(the Act) .
Essentially the requirements of a valid will are set out in
Section 6 of the Act. A will is generally invalid unless:
it is in writing, either typed or handwritten; and
it is signed by the testator/ testatrix
(Will-Maker) or by some other person in the
presence of and at the direction of the Will-Maker; and
the Will-Maker's signature is made or acknowledged in the
presence of two or more witnesses, present at the same time;
at least 2 of those witnesses attest (witness) and sign the
will in the presence of the Will-Maker (but not necessarily in the
presence of each other); and
the signature of the Will-Maker or of the other person signing
at the direction of, and in the presence of the Will-Maker must be
made with the intention of executing the will.
WITNESSING A WILL
Common misconceptions concern the correct procedure for
witnessing a will. Some misconceptions are listed and explained
A will is invalid if it is not signed at the bottom of
No, it is not essential that a will is signed at the bottom of
each page. However, it is prudent practice for the Will-Maker and
the 2 witnesses to sign the bottom of each page. This prevents
unauthorised tampering with the will by removal or insertion of
A will must have an attestation clause, otherwise it is
Again this is not true, an attestation clause is not essential
per se, however, it is again considered prudent practice for a will
to contain an attestation clause. This assists with proving the
Will-Makers capacity and intention if the will is ever challenged
A blind person can witness a will
No, a person who is unable to see and attest that a Will-Maker has
signed a document may not act as a witness to a will.
A beneficiary to a will can also witness the
As a general rule this is not true. In certain rare
circumstances, an interested witness, that is, a witness who is
also a beneficiary to the will, may act as witness and maintain his
or her status as beneficiary under the will. However, this is very
risky practice. A beneficiary to a will should never act as a
witness to the same will.
Must witnesses know that they are signing a will
No, a will that is executed in accordance with the Act is
validly executed even if one or more witnesses to the will did not
know that the document he or she attested and signed was a
GET IT RIGHT
The dangers of having a potentially invalid will are
1. Your will is greater exposed to legal proceedings brought by
people wishing to challenge the validity of the will.
2. If found to be invalid, the rules of intestacy will likely
apply to determine how your estate will be distributed. This means
your estate will be dealt with as if you died without a will.
Together, these dangers increase the likelihood that your assets
will be distributed against your wishes.
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Federal Court decision is likely to encourage the ACCC to maintain unconscionable conduct as an enforcement priority.
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