A will should comply with the legal requirements of executing a will which are found in section 6 of the Succession Act 2006. Unless each and every one of the requirements below is met when making a will, the court may not consider the will to be valid and the estate will be dealt with as if there were no will (as an intestate estate). The requirements for making a valid will are:
- it must be in writing, either typed or handwritten
- it must be signed by the will-maker or by some other person in the presence of and at the direction of the will-maker
- the will-maker's signature must be made or acknowledged in the presence of two or more witnesses, present at the same time
- at least two 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)
- the signature of the will-maker or person signing at the direction of, and in the presence of the will-maker must be made with the intention of executing the will.
It is not essential that the will-maker signs at the foot of the will.
It is not essential for a will to have an attestation clause.
A witness does not need to know that it is the will-maker's will that they are witnessing (section 7).
Signature by direction
As noted above, section 6(1)(a) allows for a will to be signed by a person other than the will-maker, in the presence of and at the direction of the will-maker. This is useful if the will-maker is unable to sign for some reason. If it is necessary for a will to be signed in this way, it is highly advisable to seek advice from a lawyer.
Signing and witnessing a will
Signing a will
Although the legal requirements have been relaxed over time, it is still advisable for the will-maker to sign the will at the foot or end of the will and on each page, and to initial any alterations.
Witnessing a will
Although the law allows the witnesses to sign the will separately, without being in each other's presence, as long as they are both present together when the will-maker signs the will, it is advisable that the will-maker and the witnesses all sign immediately after each other and in the presence of each other, and use the same pen. This is still the best way to make sure a will is validly executed because then there can be no argument that the formal requirements were not complied with.
Although an attestation clause is no longer necessary, most wills have one. It records the circumstances of the signing and witnessing of the will. Attestation clauses are particularly important in some situations. For example, if the will-maker cannot read the will, it should be read to them (preferably by one of the witnesses), in the presence of the other witnesses to the will. The attestation clause should then record the circumstances. If the will-maker cannot write, they can place a mark where they would otherwise sign and the attestation clause should state that because the will-maker was unable to sign, a mark was made by them in place of a signature. Alternatively if someone else signs by direction for a will-maker who is physically unable to sign, the attestation clause should reflect the circumstances.
Who can be a witness?
A beneficiary should not be a witness as they may lose their entitlement under the will. Section 10 now allows the spouse of a beneficiary to be a witness. Section 10 also allows a beneficiary to be a witness if one of the following circumstances applies:
- there are at least two other attesting witnesses who are not beneficiaries
- written consent is obtained from all who would benefit directly if the gifts to the witness were not allowed; or
- the court is satisfied that the will-maker knew and approved of the gift and made it freely and voluntarily.
It is still recommended that a beneficiary does not witness the will.
A person who is unable to see that a will-maker has signed a document cannot act as a witness to a will. That includes someone who is temporarily unable to see (section 9).
If a will is not witnessed
Section 8 of the Succession Act sets out when the court may dispense with the formal requirements for the execution, alteration or revocation of a will, for instance if it has not been properly witnessed. If you are unsure whether an informal document might be held to be a valid will, you should seek legal help.
Since 1989 the court may consider that a document is a will, even if the document has not been executed in accordance with the formal requirements of the Act. The court must be satisfied that the deceased person intended the document to be their will.
A minimum requirement to satisfy this section is that there is a 'document'. However, a tape recording by the deceased person has been admitted as a will in exceptional circumstances. More usually, documents that do not satisfy the formal requirements in some way (for example, with respect to witnesses) have been admitted. If you are not sure whether a document is a valid will, you should refer it to a lawyer.
Even though the section 8 exists, it is still recommended that you execute your will in accordance with the formal requirements.
A will made overseas will generally be valid in NSW if it is valid in the country where it was made (Succession Act, section 48).