Validation of Wills

Trusts and Estates

Wills are very important documents. The law recognises this by imposing very strict requirements on how they are to be signed.
For a Will to be considered valid, it must be signed by the willmaker, or at the direction of the willmaker, in the presence of two witnesses. Those witnesses must both acknowledge in writing that the willmaker signed the will, or directed someone to sign the will, in their presence, and while the Willmaker was also still with them. The witnesses to a Will must not receive any benefit under the Will, nor be married to anyone who receives a benefit under the Will.

If a document does not meet these requirements, yet it appears to be a Will, then it is still possible that it may be a valid Will.  However this requires an application to the High Court for the document that appears to be a Will to be validated.   If the court validates that document as a Will then the executors can rely on that document. 

This is a complex and costly process.  The applicant must prove to the Court that the document expresses the testamentary intentions of the willmaker.  The Court may consider evidence such whether the Will was witnessed, whether it was signed by the willmaker, any statements made by the willmaker before they died and any evidence that this is what the willmaker wanted.

Examples of documents that the Court have declared valid as a Will include:

  • Solicitor's file notes;
  • Draft Will prepared 8 years before the willmaker’s death;
  • Notes found in a notebook;
  • A Will witnessed by one witness;

We recommend everyone to see us to make a will that meets the requirements for a valid will. However, in the process of cleaning out a loved one’s home or going through their personal papers, you find a document that appears to be a Will, then we can discuss whether you have the option to have that document validated.

 

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Copyright © Cavell Leitch. All rights reserved. Redistribution is only permitted with express written permission. For enquiries please contact us. This article by its nature cannot be comprehensive and cannot be relied on by clients as advice. It is provided to assist clients to identify legal issues on which they should seek legal advice. Please consult the professional staff of Cavell Leitch for advice specific to your situation.