Properly executing a will

Date: Aug 29, 2014

Making sure your will is valid and appointing an executor who knows what they are required to do is important for minimising any confusion over your estate. 

If there is more than one will it can be cause for a person to challenge the will, if they believe they may have a claim. 

This was the case in a recent hearing at the New South Wales Supreme Court where the plaintiff contested the application for a grant of probate. The grant of probate was being applied for the May 2012 will, and was granted in common form in May 2013. 

The plaintiff argued that the last valid will of the deceased was not the May 2012 will, rather a will written in March 2012. The defendant was the executor of the May 2012 will. 

The May 2012 will made provisions for the revocations of all previous wills and testamentary dispositions, appointed the defendant as the executor and trustee of the estate and made provisions for division of the assets of the estate. 

The March 2012 will made similar provisions, however the assets were distributed differently. There was no dispute regarding the validity of this will. The defendant claims it was revoked though by the May 2012 will. 

There was dispute over whether the May 2012 will was properly executed. The court found that the May 2012 will was not properly executed in accordance with part 2.1 of the Succession Act 2006. The probate in common form for the May 2012 will was also revoked.

Properly executing a will 

If you have been named an executor and are granted probate you will be required to administer the estate.

The Law Society of New South Wales state that the first step is to register your intention to apply for a grant of probate on the Supreme Court of NSW's website fourteen days prior to making an application.

To apply for a grant of probate there are a few forms you will need to fill in - proof of death, the inventory of property, an executor's affidavit, and the original will. 

The Law Society also states that a solicitor is often named the executor of a will so that the estate is administered properly. It is a good idea to get the advice of a solicitor if you are a sole executor of an estate.