Published 14 Mar 2017
An invalid will means a lot to family and friends. It can either mean that an inheritance may increase or decrease, manifest or disappear. It can be the start of a family provision claim in New South Wales, or another form of will dispute.
Yet, the intricacies of will making and the process that legitimises a will are not the most straightforward, in fact they can be downright confusing.
To put invalidity into context, we've compiled three reasons a will may not stand up in court. Take a look, because the next time you're left out of a will these reasons could ensure that your relationship with the deceased is properly respected.
Reason 1: Improper witnessing
One of the foundational aspects of a valid will is the adherence to the correct witnessing process. In New South Wales, a will must be witnessed by at least two independent individuals who are aware of and accept the duty of witness.
Contrary to popular perception, the law allows a witness to sign the document separately. What this means is that the witness does not have to be in the presence of the will-maker when they sign the document.
Those challenging the will cannot rely on this alone to prove invalidity. However, a Judge will take into consideration the role of witnesses when determining if a will is valid.
Reason 2: Testamentary capacity
One of the reasons that the law is so strict on witness is that it can help prevent an individual creating a will when they do not have the mental capacity to do so.
If a will-maker does not appreciate the significance of the legality of a will, understand the extent of their estate, know who may or may not be a beneficiary or have the ability to determine who they must provide under the law, it can lead a will to be invalid.
Reason 3: Undue Influence
Another reason for the witness process is the problem of undue influence. This occurs when another person unethically influences the will-maker to their benefit.
If this occurs, the will can be deemed to be the product of another's actions and not the creation of a will-maker who freely, voluntarily and independently created the document.
If you believe that the will-maker submitted to the wishes of influences of another, this could be grounds to contest a will in New South Wales.