REQUIREMENTS FOR MAKING A WILL

Making a will is an important task that requires careful consideration and attention to detail. Here are some of the key requirements that must be met when making a will.

Capacity of the will-maker

In general, any human being who meets certain requirements as to age or status and who is of sound mind may make a valid will. The will-maker must be of sound mind and:

• have either reached the age of 18; or
• married or entered into a civil union or a de facto relationship; or
• obtained the approval of the Family Court; or
• become a military or seagoing person; or
• agreed with someone else to marry or enter into a civil union, or agreed with someone else to enter into a de facto relationship.

If the will-maker does not meet these requirements, the will may be invalid.

Will must be in writing

A will must be in writing and must represent or reproduce words, figures, or symbols in a visible and tangible form and medium, such as print. An electronic document may qualify as writing, but a will must also be signed and witnessed which cannot be done electronically. The will-maker must sign the will, and witnesses must sign together in the will-maker’s presence. The court may declare a document to be a valid will even if it does not meet all the formal requirements for validity.

Draft or tentative document

A document may still qualify as a valid will even though it is written in pencil. However, it must be clear that it was intended to take effect as a will and is not just a draft or set of notes. If there is any question as to whether the document was intended to be the final one or was just in preparation for some more formal document, then the way in which the document was written becomes more important. If only part of the will is in pencil, the part written in pencil will be excluded.

Gap and blanks

Gaps or blank spaces in a will may also raise questions. However, the law does not require a will to be written continuously. For example, a will (handwritten by the will-maker) was written on a folded double sheet of paper. The second page was left blank. The next page contained two lines completing a sentence from the first page with an additional sentence. The fourth page contained the appointment of executors, the testimonium and attestation clauses, and the signatures of the will-maker and two witnesses. The Court held that the whole document constituted the will of the deceased and had been properly executed.

Symbols

Code, letters or ditto marks used in a will do not affect its validity. The court has always admitted external evidence to explain their meaning. The High Court now has even wider power to correct a will and to refer to external evidence in order to carry out the will-maker’s intentions under ss 31 and 32 of the Wills Act 2007.

Signature

For a will to be valid, it must be signed by the will-maker or by some other person in the will-maker’s presence and at the will-maker’s direction. When signing, the will-maker must have intended to sign the document as his or her will. The signature may consist of the person’s name, initials, or a mark, such as an x. If the person’s initials or mark are intended to represent a signature, this will be sufficient.

Some older cases also cover some of the more unusual situations:

• Signature by mark alone will be sufficient.
• If the identity of the will-maker is proved, a wrong name appearing in the will and against the mark will not invalidate it.
• A stamped signature may be sufficient.
• An upside down signature has been held to be sufficient.
• A signature in a wrong/assumed name may be sufficient. g. a member of a religious order signed her name Sister Albinus.

Signing a Will

There are two steps required when signing a will:

1. the will must be signed by the will-maker who must have the legal capacity to make a will; and
2. the witnesses must sign together in the will-maker’s.

It must be signed in that order.