What Makes a Will Valid?

3^rd February, 2025

Creating a valid Will ensures that your wishes are respected after your passing. While the requirements are similar across Australia, there are a few key elements that must be followed to ensure your Will holds legal weight.

1. It Must Be in Writing

A valid Will must be in writing, either typed or handwritten. Today, most Wills are typed, as it helps avoid any ambiguity that may arise from handwritten documents. A typed Will is generally clearer and easier to read, reducing the risk of disputes later. It’s important to remember that oral Wills are not valid in Australia.

2. Mental Capacity is Essential

You must have testamentary capacity when making your Will. This means you need to understand the nature and effect of your Will, the property it covers, and the people who may have a claim on your estate. If there are any concerns regarding your mental capacity—such as following an illness or cognitive decline—it’s advisable to seek a formal assessment from a medical professional. This can provide an affidavit confirming your mental competence at the time of signing, helping to safeguard against potential challenges to the validity of your Will.

3. Witnesses’ Role

For a Will to be valid, the testator must sign it in the presence of two independent witnesses, who must also sign the document confirming they saw the testator sign it. While witnesses do not need to know the Will’s contents, they must be present at the signing and sign immediately afterward using the same pen. This ensures that no alterations have been made after the Will was signed.

Witnesses must be over 18 and independent, meaning they cannot be beneficiaries of the Will, as this could invalidate the gift they are set to receive. Their role is to verify that the Will was signed voluntarily and that the testator had the mental capacity to do so.

4. Effect of Marriage and Divorce

Marriage can revoke a Will in some states, while divorce may invalidate any provisions for an ex-spouse. To avoid confusion, it is crucial to update your Will whenever there is a change in your relationship status, whether through marriage, divorce, or the birth/adoption of children.

5. The Importance of a Valid Will

If your Will is not executed properly, the court may rule it invalid, which could result in your estate being dealt with under intestacy laws. This means that your assets would be distributed according to the law rather than your wishes, which could create confusion or conflict among your family.

6. Does the Validity of a Will Differ Across States?

The requirements for a valid Will are largely the same across Australia, but there are some minor differences from state to state. For example, in some jurisdictions like NSW, remote witnessing (using audiovisual technology) is permissible. This change, which was introduced in response to COVID-19, has since become a permanent option in several states, making it easier for people to execute Wills without needing to be physically present. It’s always a good idea to consult a local lawyer to ensure your Will complies with the specific rules in your state.

Drafting a valid Will in Australia requires attention to detail and professionalism. Ensuring that the process is followed correctly can help avoid legal complications later. At Castrikum Adams Legal, we provide expert advice and can assist you in creating a valid and enforceable Will. We ensure that your wishes are respected, providing you with peace of mind.

If you would like to dive deeper into related topics, we invite you to check out our other blog posts.