Capacity to make Australian Wills.
In order for a Will to be valid it must be made by a person who has attained the age of eighteen years or over and is of sound mind. The courts will refuse to grant probate where it is not satisfied that the Will is the free act of the testator, as where there is undue influence. Where a person making a Will is suffering from a mental illness, the Will may be deemed to be valid if made during a period of lucidity and not invalidated by a subsequent relapse.
Requirements for signatures.
For an Australian Will to be upheld as valid it must be in writing, and in accordance with the following requirements in relation to the signature. The Will must be signed by the testator on every page or by someone directed to do so on his behalf. Signatures may include marks, initials, a rubber stamp, a "nick-name", or a former name. The general test in relation to the admissibility of the Will is whether the testator intended the signature to execute the Will. The Will must be signed at the foot of every page of the Will. The law will not give effect to any dispositions made after the signature.
The testator's signature must be made in the presence of two witnesses both present at the same time with the testator, and the witnesses will then be required to sign each page of the Will in the presence of the testator. The witnesses do not have to be present when the testator signs the Will provided they are present when the testator acknowledges the signature.
1. You must sign your ordinary signature, using a pen, in the space provided at the bottom of every page of the Will and above the word Testator or Testatrix on the final page.
2. You must write your signature in the presence of two witnesses.
3. Insert the date on which you signed or attested the Will in the space provided (e.g. 1st day of January 2000).
4. The witnesses must then, in your presence, write their name, address and occupation in the space provided at the end of the Will and also sign their name opposite yours at the bottom of each page of the Will.
5. The witness should be at least 18 years of age or older.
6. A witness should not be a beneficiary under your Will as this could serve to nullify any gift made to them under the Will.
7. Remember to keep your Will in a safe place.
8. If you have any queries in relation to the signing of your Will please feel free to contact us using the links provided.
Revocation of an Australian Will.
A testator may revoke a Will in several ways.
(1) A Will may be revoked by a later Will or codicil.
(2) A Will may be revoked by destroying it or by the testator directing another to destroy it in his presence. The writing of the word "revoked" on the Will is insufficient to legally revoke the Will.
(3) A Will made in the Australia is revoked by marriage unless it is made in contemplation of marriage.
Gifts to witnesses.
In general any gift made to those who witness a Will is void. Should you wish to give a gift to a witness you should make provision for this gift in a codicil signed by witnesses other than those you wish to benefit.
Intestacy rights of a spouse.
This information is based on our understanding of current law which may be subject to change in the future. The information in this website does not constitute legal advice. You should obtain the advice of a professional advisor before relying on any information contained on this website.
Australian Wills: AUS$37.95
