Your Will is an important legal document containing your wishes for when you pass away. Having a will ensures your wishes will be carried out and your loved ones are provided for. In some jurisdictions, a legally accepted Will requires a lawyer’s engagement because of the legal formalities. Nevertheless, in some cases, an informal Will can still be accepted as valid.

In Australia, some people choose A Will Kit being a cheap option as it offers an affordable and private way to draft a Will without incurring extra costs by hiring a family or estate lawyer. However, the potential buyers of a Will Kit are encouraged to bear in mind that their Will is created with no benefit of legal advice or customised assistance, and they may end up facing a situation where they need to hire a lawyer and pay extra costs and time if significant changes arise.

The formal requirements of a valid Will

In NSW, the formal requirements of a valid Will are set out in section 6 of the Succession Act 2006. This section stipulated that a Will is not valid unless:

  • it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and
  • the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and
  • at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

Section 8 of the Act, however, provides an exception for formality requirement section, which provides that ‘informal’ documents that have not been signed or witnessed in line with the formal requirements can still be recognised as a valid Will and admitted to probate.

Case Study: Application by Maggie Riman (Estate of Rita Riman) [2022] NSWSC 872

Rita Riman committed suicide at age 42 and, before she did so, she had completed questions online and included information such as her personal details, asset and liability, who would act as her executor, and who would receive gifts through an online Will-writing platform to make her Will.  Her estate largely consisted of her superannuation and most of the estate was left to her sister. On the day of her suicide, Rita emailed her lawyers, to let them know that she had completed her will and provided them with a link to give access to what she referred to as her ‘online Will’.

Initially, the online Will had been rejected by the Court although the disposition of estate was not disputed and was accepted by the family members. The New South Wales Supreme Court in the case of the application by Maggie Riman (sister of Rita Riman) dealt with an application on the validity of an online Will that was not signed before the will-maker died. The Court exercised its power under section 8 of the Succession Act and determined that the online Will was valid. However, this does not mean that the same conclusion will be reached for all informal Wills. In Rita’s case, her estate was simple, and she had clear testamentary wishes. In fact, the judge commented that the application might not have succeeded if it were not for the statements made by the deceased. This addresses the importance of having a valid and properly executed Will to avoid the Will being set aside by the Court or being contested.

It is important that you seek legal advice from an experienced Lawyer to ensure that your Will is valid and enforceable.

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If you would like more information on effectively preparing a Will with us, please call our National Hotline on 1300 559 888, or fill out the enquiry form here.