What Constitutes A Will?
Your last will and testament is an extremely important document which articulates your wishes at the time of your death. Whilst a will must be treated with care, it does not need to be etched in stone or written with gold leaf. In fact, the cliché example of a will scrawled on the back of a napkin can be valid and enforceable if the critical elements of the will are fulfilled.
A valid will must be in writing, signed by the person making it (the testator) who has capacity at that time and it needs to be signed as witnessed by 2 people over 18 who are not beneficiaries of the will. So in essence, a scrawl on the back of a napkin, the DIY will kits sold at a post-office and will drafted by your solicitor could all be valid wills. These sometimes occur when a will needs to be completed immediately because the testator is sickly. A validly executed will immediately supersedes any previously executed wills however the older wills should be retained in case they are required later, as is occasionally the case.
While some of the more haphazard wills are valid, as might be expected, wills of this nature are more likely to be contested and challenged, and making them acceptable for use in a deceased estate can be expensive and take time. Increasingly common challenges to the validity of a will are that it was made under undue influence from another party or that the testator did not have capacity at the time. These are now joining the traditional challenges to a will under Family Provision Applications, namely, beneficiaries disputing their share of an inheritance under the laws made in State Government legislation. These applications regularly take 12 months or more to resolve and incur substantial legal costs.
While these claims cannot be avoided, the prospects of them succeeding can be reduced by ensuring that your will is current and valid. As such, it is always the preferred approach that your will is drafted to your wishes by your solicitor, properly executed and witnessed. This will mitigate challenges to your will regarding its validity and ensure that when the time comes to distribute your estate, it will be completed in accordance with your final wishes.
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