The technical requirements for a valid will are fairly minimal:
1. It must be in writing
2. It must be signed by the testator in front of two witnesses; and
3. The witnesses must also sign the will and cannot be beneficiaries under the will
However, when it comes to estate planning there is much more to consider. To begin with if you have a complex asset structure an estate planner will be invaluable in making sure your assets are devolved efficiently and in manner that affects your wishes. But more importantly a lawyer is in the best position to ‘future proof’ your will. That is draft it in a way that reflects your wishes and prevents your will being challenged once you die.
Our lawyers have an in depth knowledge the legal bases on which a will can be challenged.
First, it is important to understand that a will can only be challenged by those people designated under the relevant legislation. Under the New South Wales Succession Act 2006 persons eligible to challenge a will include the will maker’s:
- De facto partner
- Former partner
- A person who was in a close relationship with the will maker and was considered a member of their household.
Establishing that the necessary relationship exists may be straight forward, for example in the case of a spouse. However corroborating evidence of the relationship may be required in cases of de facto relationships or close personal relationships.
An eligible person challenging the will also has to prove two additional elements:
1. That the deceased had a moral obligation to provide for them on his or her death
2. That they have a need to be provided for
Aside from making a claim for further provision from a will and eligible person may also challenge the will on other grounds.
The foundation law of wills is that the latest valid will executed by the deceased supersedes any earlier wills they may have made. For example a grant of probate might be sought for a will and be challenged by an eligible person on the basis that the deceased made a more recent will. If the eligible person can prove that the later will is valid then the later will prevails and the earlier version will be declared invalid.
There are also a number of bases on which an eligible person may be able to claim that a will is invalid. For example if the will maker did not have the mental capacity to understand and approve the will when it was made this may be a ground on which the will can be declared invalid.
Another possibility is the eligible person may be able to prove the will maker was not acting of his or her own volution when they signed the will. If the eligible person can prove the deceased was suffering under duress when they signed the will, the will could be invalid.
In some circumstances the eligible person may be able to argue that the will has been altered without the will maker’s knowledge or consent or that the will is completely fake, in which case it will also be declared invalid.
Considering all the grounds on which a will can be challenged it is prudent to get sound legal advice when you make your will. If you require advice on making your will or wish to challenge a will please call Dominic Wilson on 02 8268 4000.