A will is often described as a person's voice after they have gone. It is the legal document by which you can ensure that your final wishes regarding your estate are carried out the way that you intend. As a legal document, a will can often be complex and the drafting process can at times be difficult. It is therefore important to understand and avoid the common mistakes that occur when making a will, in order to ensure that your assets are distributed according to your wishes.
Formalities of preparing a will
It is important to comply with the following strict formalities of preparing a will, in order to avoid the will being held as invalid.
The will must be in writing
The will maker and each witness should sign each page of the will to clearly identify that each page is part of the will
The signature and any initials of the will maker must be witnessed by two witnesses.
The witnesses must sign after the will maker has signed
Both witnesses must be present together at the time of signing the will
Witnesses must not be a beneficiary in the will or be married to, or a domestic partner of people mentioned in the will. They will be deemed an -interested witness' in these cases
The will must not be prepared whilst the will maker is under undue pressure from anyone
All signatures should be made with the same pen
No other documents should be clipped to the will
Writing the will
When writing a will, the following points should be reviewed and carefully adhered to.
All previous wills (if applicable) have been stated as revoked
Beneficiaries are clearly identified
The Executor is clearly identified
The will is dated and signed correctly
The will clearly lists how the estate is to be distributed and includes contingencies if the beneficiaries die before you.
The courts when deciding the meaning of a will, will look first at the actual wording of the document. It is therefore recommended that professional advice be sought from a lawyer, to ensure that these strict formalities are adhered to and in order to ensure that the wording of the will aligns with your intended wishes.
In order for your will to be valid you must have testamentary capacity. This means that you must both know and understand the following when creating your will:
The nature and effect of a will
The approximate value of what you have to leave in the will
Claims that may be made against your property (for example by people who are dependant on you)
Knowing the location of the will
It is important that the executor of the will, or a relative be told of the location of the will so that it can be easily accessed when the will maker dies. It is advisable that the will be kept in a safe place, such as a bank, safe or with a solicitor to ensure that it does not go missing. If a will disappears while in the custody of the will maker, a presumption exists that the will maker has revoked the will by destruction, thereby making the will invalid.
Protect yourself against possible challenges
If you are aware that there is something unusual about the signing of your will, for example if you believe that your testamentary capacity may be later challenged, you can obtain an affidavit to prevent these possible challenges from later arising. In this case, an affidavit would simply be a written statement confirmed by oath or affirmation from a doctor who has assessed your mental capacity and is able to confirm that you are sound of mind.
Keeping your will updated
It is important to regularly review your will and to update it whenever your life changes. This ensures that the important people in your life are looked after by the will. Significant life events that should be updated in the will include;
divorce or marriage
having a child
buying or selling property
changing the executor of your will
deciding or changing the guardian of your children.
Ensuring all changes to the will are valid
The will itself cannot be altered simply by rubbing out certain statements or by adding additional instructions between those already included. All alterations must be signed by the will maker and two witnesses in the same way as when the will was originally drawn. A formal supplement known as a codicil can be executed when making substantial alterations to will, however it is recommended that a new will be executed in order to avoid confusion between the two documents.
Obtaining the advice of a legal professional is a great way to ensure that all requirements of writing the will are adhered to, and to ensure that your assets are distributed the way that you intended them to be.
Written by Laura Costello who is in her third year of a Bachelor of Law/International Relations at Latrobe University. She is passionate about the law, the power of social media, and the ability to translate her knowledge of both common and complex legal topics to readers across a variety of mediums, in a way that is easy to understand.