Creating a Will is an essential part of estate planning. A valid Will ensures that your assets are distributed according to your wishes after your passing. However, the legal validity of a Will hinges on strict adherence to formal requirements. Failure to comply with these requirements can lead to significant complications. In this blog, we’ll explore what happens if a Will isn’t signed correctly within the Victorian jurisdiction.
Legal requirements for a valid Will in Victoria
In Victoria, the rules governing the creation and execution (signing and witnessing) of Wills are quite specific and governed by the Wills Act 1997 (Vic) (“the Act”).
Before delving into the consequences of an improperly signed Will, it’s crucial to understand what constitutes a valid Will in Victoria. The Act sets out the following formal requirements.
Your Will must be in writing
The Will must be in writing. This includes handwritten, typed, or printed documents. It cannot be a digital version only.
Your Will requires the signature of the testator (Will-maker)
The person making the Will (the testator) must sign the document.
Your Will must be signed in the presence of two witnesses
The testator’s signature must be made or acknowledged in the presence of at least two witnesses, both of whom must be present at the same time, and all parties must sign with the same pen.
Witnesses must sign the Will at the same time as the testator
The witnesses must also sign the Will in the presence of the testator.
These steps are designed to ensure the authenticity and voluntary nature of the Will, as well as minimising the risk of fraud or undue influence on the Will-maker.
Consequences of an incorrectly signed Will
If a Will does not meet the above requirements, it is generally considered invalid.
Here’s what that could mean for the estate and the testator’s intended beneficiaries.
Rules of intestacy may apply
If the Will is invalid, the estate may be distributed according to the rules of intestacy. Under Victorian law, this means the estate is divided among surviving family members based on a predetermined formula, which may not reflect the testator’s wishes.
Basically, it is as if there was no Will. You can read more about this in our earlier blog, “What happens if you die without a Will?”
Legal challenges can be brought if a Will is not signed correctly
An invalid Will can lead to disputes among potential beneficiaries, resulting in costly and time-consuming legal battles. Relatives who might have been intentionally excluded or given a smaller share may contest the Will’s validity, leading to further complications.
Court intervention may be possible, but no guarantee
The Supreme Court of Victoria has the power to rectify or validate a Will under certain circumstances. The court can exercise its discretion to accept an invalid Will if it is convinced that the document represents the genuine intentions of the deceased.
This is known as the court’s power to dispense with formal requirements under the Act.
However, this process can be complex, uncertain, and expensive.
Emotional strain
Beyond legal and financial ramifications, an invalid Will can place a significant emotional burden on loved ones. Disputes and court proceedings can strain familial relationships, compounding the grief and stress associated with losing a loved one.
Steps to ensure your Will is valid
To avoid the pitfalls of an invalid Will, you should consider the following steps.
Seek legal advice when ready to make your Will
Consult a solicitor who specialises in Wills and estates to ensure your Will meets all legal requirements. A solicitor will also ensure Your Will is signed and witnessed properly.
Follow formalities
Adhere strictly to the formalities prescribed by the Act. Ensure that your Will is properly signed and witnessed.
Review your Will regularly
Regularly review and update your Will to reflect any changes in your circumstances or intentions. You can read more about this in our earlier blog, “5 key reasons to review your Will”.
Store your Will in a secure and safe location
Store your Will in a safe place and inform your executor or a trusted person of its location. You can provide your executor with a copy of your Will, but there will only ever be one original Will. The original Will is required for your executor to obtain a Grant of Probate to distribute your estate.
Are you an executor of a Will that is not correctly signed?
If you are appointed as an executor of a Will that is not signed in accordance with the Act then you should seek legal advice on the Will.
A solicitor can assist you with making an application for an “informal Will” under section 9 of the Act and provide you with advice on choosing the smoothest path forward while meeting all of your legal obligations as executor.
Get help from a Wills and estate planning lawyer
Creating a valid Will is crucial for ensuring that your estate is distributed according to your wishes and minimising potential disputes. In Victoria, the importance of correctly signing your Will cannot be overstated. By understanding the legal requirements and taking appropriate measures, you can safeguard your legacy and provide peace of mind for your loved ones.
Contact David Davis Lawyers
Phone: 03 9014 1299
Email: admin@ddavis.com.au