Most people understand that it is important to have a Will that sets out your testamentary wishes should you die. It is more important to ensure that the Will is valid and executed correctly to ensure that those testamentary wishes are carried out and provide peace of mind to your loved ones.
The Succession Act 2006 (NSW) (the Act) provides that a Will is not valid unless it is in writing and signed by the will maker and signed in the presence of two witnesses who are the over the age of 18 and are not listed in the will1.
Whilst it is important to ensure that a Will is validly executed, it is not always the case that people will seek legal advice from a solicitor as to the terms and execution of their Will. Some people will choose to use DIY Will kits from their local Post Office, or some people may even choose to type, or hand write their own Will. This begs the question whether these handwritten documents constitute a valid Will?
The Court has the discretionary power to dispense with the requirements for the valid execution of a Will, which is relevant where a will maker may choose the path of the 'DIY Will Kit'. Under the Act, the Court can admit other types of documents if it is satisfied that the person intended the document to contain their testamentary wishes2.
A recent demonstration of the Courts discretionary power can be seen in the late US TV host and broadcaster Larry King's estate3. Larry King left a handwritten Will that purportedly leaves his $2 million estate to his children. The 2019 documents states:
"This is my Last Will & Testament," "It should replace all previous writings. In the event of my death, any day after the above date I want 100 percent [placed above illegible cross-out] of my funds to be divided equally among my children Andy, Chaia, Larry Jr., Chance & Cannon."
Larry King's estranged widow, Shawn Southwick King is seeking to contest his Will on the basis that he was of questionable mental capacity at the time the handwritten Will was made. Larry King was divorcing Mrs King at the time of his death, but the divorce was not finalised.
In addition, Mrs King has alleged that her stepson Larry King Jr, exerted undue influence over his father towards the end of his life and is seeking that the handwritten Will made by Mr King in 2019 conflicts with a Will executed by Larry King in 2015, whereby she was named the executor of his estate. The outcome of the matter is yet to be determined and has been scheduled for hearing in the Los Angeles County Probate Court in May 2021.
This matter serves as important reminder that having a validly executed Will is crucial to ensuring that your wishes are adequately documented and will be carried out. Our expert estate planning team can assist you with ensuring your wishes documented and executed properly. Please contact our office to speak to our Wills and Estates team for further information.
1S 6 Succession Act 2006 (NSW)
2 S 8 Succession Act 2006 (NSW)
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.