Invalid wills can lead to inheritance disputes

Published 10 Apr 2014

When estate planning, it is important to ensure you follow all legislation and recommendations to protect the validity of your will and avoid inheritance disputes.

If the Courts decide a will is invalid, the deceased’s assets will be distributed using the intestacy formula, which means only direct family members could receive benefits.

When a friend or someone in your family passes away and you are named in their will, it can be a difficult action to accept when their will is considered invalid. Fortunately, if you believe the deceased had some moral obligation to provide for you, you can contact a contesting wills lawyer to ensure you receive the assets you deserve.

There are a number of factors that can affect the validity of a will, as estate planning must adhere to strict legal requirements.

Age when the will was created

To create a will as an unmarried Australian, you must be over 18 years old. However, the Supreme Court can approve a will for younger people under exceptional circumstances. This is advised for any young person earning large sums in money in occupations such as modelling, acting or playing sports.

The format of the will

A valid will must be written in some form – verbal estate agreements are not required to be honoured by the Courts. Handwritten, typed or printed documents are all acceptable written forms of a will.

Signed and witnessed

To ensure validity, a will must be signed by the deceased and witnessed by two or more individuals. These witnesses should not be beneficiaries in the will, as this can cancel out their entitlement.

Testamentary capacity

The creator of the will must have ‘testamentary capacity’ at the time of writing the document. This means they need to completely understand the legal impact of creating the will, be fully aware of the extent of their assets and know of the people who are typically expected to benefit from the estate.

Additionally, the mental state of the individual must not impede their ability to make rational decisions when creating the will.

Clear and understandable language and wishes

If someone chooses to create their own will, without the help of a lawyer or advisor, they risk using language or wording that could affect the validity of certain requests. It is therefore recommended that all wills be created with official legal help to ensure all wishes are properly recorded and carried out.

When a friend or family member’s will has been declared invalid, you have the option to enlist the services of a contesting wills lawyer to dispute the Courts’ intestacy formula. For more information, get in touch with the inheritance disputes specialists at Gerard Malouf & Partners today.

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