What is required to make a will legally binding?

Date: Feb 16, 2015

When individuals begin planning their estate, it is important they take the time to understand the conditions that make a will legally valid. 

If a will fails to meet these conditions there is a high chance the courts will rule it is in invalid and therefore won't be admitted to probate. If there are competing wills, this may create an estate dispute between different family members, adding to the importance of drafting a legally sound document.

There are five key features that a will needs to possess if it is going to be admitted to probate, as laid out in the Succession Act

2006 (NSW). These are:

  1. The will must be signed by the will-maker. In some situations, a will can be signed by another individual, provided the will-maker was present and instructed for the will to be signed by another person.
  2. A will must be either written by hand or typed.
  3. When the will is signed by the will-maker, it must be done with the intention of executing the will.
  4. The signing of the will by the will-maker must be observed by a minimum of two witnesses. It is advisable that these witnesses not be beneficiaries of the estate, although this can be arranged in some circumstances.
  5. These witnesses will also need to sign the will, in the presence of the will-maker.

While many of these conditions are likely to be common knowledge among will-makers, it is still important they are each carried out correctly to ensure a will is admitted to probate.

At the same time, there are some conditions that are not required in every will, but will still be necessary in certain circumstances.

One of these is an attestation clause, which is used to detail the conditions under which a will is witnessed. Although not legally required in every will, many will still include this clause.

In some situations, it is also legally necessary for this clause to be included in a will. Most commonly, this will occur when the will-maker needs assistance with the signing process. For example, if the will-maker cannot read the will on their own, someone present at the signing - ideally one of the witnesses - will need to read the document out loud. An attestation clause then needs to be included to explain this process took place.

If you would like assistance drafting a will, or are seeking advice on a grant of probate for a will which doesn't meet these conditions, make sure to discuss this with a wills and estates lawyer.