What are legal Wills in Australia? Generally, for the the Will to be legal, it must be in writing (whether handwritten or typed), signed, and the signature witnessed by two other people who also need to sign the Will.
The Succession Act 2006 (NSW) deals with legal Wills in Australia. Your assets must be distributed following a strict formula set down in law, which is different in each Australian State and Territory. Some of these assets may include:
- Bank accounts
- Stocks
- Property
- Insurance
Generally, your first closest family members get all your assets. The executor is the person responsible for distributing these assets. The Solicitor who prepared the Will usually holds/files the Will in “safe custody.” If this is not the case a Will may be located at the Supreme Court, Public Trustee, Bank or personal home of the testator.
This article discusses legal Wills in Australia, specifically in New South Wales (NSW).
Who Can Make Legal Wills in Australia?
In order for a Will to be valid, a person who is capable of making a Will should make a Will. Any person in Australia who is over 18 years of age and of sound mind can make a Will. However, note that one must meet other requirements and submit other legal documents in order for a Will to have legal effect.
Requirements for Legal Wills in Australia
Your Will should comply with the legal requirements provided under Section 6 of the Succession Act 2006 (NSW). If one of the requirements is missing, the Will cannot be legally valid. To make a Will that is valid and legally enforceable, parties must keep the following criteria in mind:
- it must be in writing (whether typed or handwritten),
- the Will-maker must sign it, or some other person must sign it in the presence of and at the direction of the Will-maker,
- the signature of the deceased person must be made or acknowledged in the presence of two or more adult witnesses,
- at least two of those witnesses must 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 person signing at the direction of, and in the presence of the Will-maker must be made with the intention of executing the Will (animus testandi).
Furthermore, you must note that the witnesses do not need to know that it is the Will-maker’s Will that they are witnessing. The law also provides that beneficiaries cannot be witnesses as they may lose their entitlement under the Will. It is also not essential that the Will-maker signs at the foot of the Will and for the Will to have an attestation clause.
Even where you have met the requirements above, your assets can not be distributed immediately. Sometimes, a court needs to grant probate first. A grant of probate is a legal document that authorises your executor to manage your estate in accordance with your Will.
Testamentary Capacity
It is significant to note that the Will-maker must have “testamentary capacity”, the concept of which is explained by McMillan J in Re Jones [2021] VSC 273 (17 May 2021):
To prove a testator had testamentary capacity, the supreme court must believe that the testator:
- understood the effect of making a Will,
- was aware of the general nature and value of the estate,
- was aware of those who would have a natural claim to the estate, and
- was able to evaluate and discriminate between such claims.
This means that you are mentally competent and understand the definition and legal effects of a Will, and are aware of the extent of your personal assets and the persons who would be expected to benefit from your estate. For example, life insurance companies require you to nominate a beneficiary at the time of taking out your life insurance policy.
Upon notification of your death, your life insurance policy benefits are paid directly to your nominated beneficiary without reference to your Will. Therefore, when you renew your policy be sure to check the beneficiary details.
Legal Wills in Australia: Grounds for Challenging a Will
If a Will is not valid, some parties can challenge it based on the following grounds:
- Lack of Testamentary Capacity. If the Will-maker was not mentally competent at the time of the execution of the Will, some parties can challenge the Will.
- Undue Influence. Undue influence refers to situations where a third party pressures the Will-maker to write the Will in a way that goes against their true wishes. Undue influence includes psychological or physical threats, as well as intimidation, deceit, or blackmail. This ground commonly occurs when a third party forces the Will-maker to name them as a beneficiary. However, persuasion is not enough to establish undue influence [Coles v Reynolds and Another (2020)]. There should be evidence that there was coercion, such as any witnesses to coercion at the signing of the Will.
- Suspicious Circumstances. The supreme court also considers circumstances surrounding the making of the Will to ensure that the Will-maker indeed knew and approved of its contents. In cases of suspicious circumstances, the burden of proving that the Will-maker knew what they were signing falls on the person trying to uphold the validity of the Will. Examples of suspicious circumstances include:
- An entire estate being left to a person unknown to the Will-maker’s family and friends,
- A significant and unexplained change in the division of the estate,
- A child disinherited (due to a complex family situation), but with no estrangement or change in the relationship with the Will-maker,
- Someone other than the deceased prepared the Will, or
- The Will is significantly different compared to any previous wills that the Will-maker drafted
- Forgery. One must provide evidence that someone else signed Will in order to challenge the validity of a Will on the grounds of forgery.
Dying Without Legal Wills in Australia
A Will that is not valid makes a person die intestate (dying without a valid Will). Making a legal Will allows you to choose your beneficiaries. A person dying intestate means they will have no control over the distribution of assets.
The persons entitled to a claim of your estate will then be governed under the intestacy laws of your state or territory. In NSW, for instance, properties will automatically be left to the next of kin, as provided under the intestacy rules under Chapter 4 of the Succession Act 2006 (NSW).
Under said law, assets will be passed on to the surviving spouse. If the person does not have a spouse, the order of relatives who are eligible to inherit is as follows:
- Children
- Parents
- Brothers and sisters
- Grandparents
- Aunts and uncles
- Cousins
If you die without a Will and without eligible relatives, your estate will be passed on to the government. Furthermore, intestacy rules only let your family members inherit from you. So if you wish to leave some of your assets to friends or acquaintances, having a legal Will is crucial.
Seeking Expert Legal Advice from Expert Family Lawyers
Ensuring that a drafted Will remains valid will require the assistance of expert family lawyers. JB Solicitors has a leading team of wills and estate plan lawyers that can help with drafting a legal Will. We can guide you through every step of drafting your will and help in your financial affairs through proper financial planning.
Do you have any more queries on legal wills in Australia? Contact us today.