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What happens if your homemade Will does not comply with the legal formalities required for a valid Will?

Everyone should make a Will, even if they do not have any money or property at the time they prepare it.

A Last Will and Testiment speaks into the future so when you do die you may well have property that can be passed onto those you leave behind.  It will make things much easier for your family and friends if you have made a Will.

If you die without making a Will then you die “intestate“and a Government formula will decide who gets your property – and that could be someone you did not want to recieve your hard earned assets.

Unfortunately, some people who make their own homemade Wills often do not comply with the legal requirements for making a Will and so the Will is not a valid Will.  For example, a Will must be –

  1. signed by the person making it;
  2. witnessed by two other people; and
  3. all must be present at the same time when they each sign the Will.

So what happens when a person does not follow the formal requirements to sign and witness a Will?  For example, the Will is not signed by the deceased or only one witness has signed the Will?

Since 1998 the NSW Supreme Court has had the power to dispense with the legal formalities of making a Will provided 3 conditions are met, namely –

  • There must be a document;
  • The document must purport to contain the testamentary intentions of the deceased and;
  • The deceased must have intended the document to form the deceased’s Will.

It is not always easy to pursuade the Court to exercise its “dispensing” power to approve a Will that does not comply with the above legal formalities so it is much better to do the Will properly in the first place.

by spending a few hundred dollars up front to have a Will properly prepared your estate may save many tens of thousands of dollars in a Court case trying to fix the problems left behind by a Will that has not been properly prepared.  Then of course there are other matters to consider such as whether someone may make a challenge to your Will … but that is a story for another time!

At Brazel Moore Lawyers we can advise you about all of the matters you should take into account when preparing your Will to make sure your property goes to those you intend to receive it from your estate.

Should you have any enquiries, call Geoff Brazel on (02) 4324 7699.

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