A family provision claim proceeds on the basis that the deceased's will is valid. So what are the formal requirements for a valid will, and what happens if they are not complied with?
How Should a Will be Executed?
A will must be in writing. Writing is defined in section 21 of the Interpretation Act as any form of representing or reproducing words in a visible form, e.g., printing, photography, typewriting or lithography.
The testator must sign the will, and the testator must have signed the will with the intention of giving effect to the will. Any mark made on the will by the testator might be sufficient to satisfy the formal requirement if it was intended to authenticate the will.
If a testator is incapacitated or unable to sign the will, another person may sign the will in the testator’s presence and at the testator’s direction.
The testator must sign or acknowledge their signature in the presence of at least two witnesses, and those witnesses must attest and sign the will. The witnesses must sign the will in the testator’s presence; however, they need not sign in the presence of the other witnesses.
A person who is a beneficiary under the will must not sign as a witness, as they may lose their entitlement under the will. However, there are a number of exceptions to this requirement, being:
- Where there are two other witnesses who are not beneficiaries.
- Where all persons who would benefit from the beneficiary losing their entitlement consent in writing to the gift being given to them; or
- Where the Court is satisfied that the testator knew and approved of the gift and the gift was freely and voluntarily given.
What Happens if the Formal Requirements are not Complied with?
The Court, pursuant to section 8 of the Succession Act, has to power to dispense with the formal requirements for the execution of wills in certain circumstances. Thus, a will may be valid even if it fails to comply with the formal requirements. The section 8 dispensing power may be used where:
- The deceased has left a document embodying their testamentary intentions; and
- The Court is satisfied that the deceased intended the relevant document to constitute their will.
If the formal requirements are not complied with, and the dispensing is not enlivened, the will may be invalid, meaning it cannot be admitted to probate. If this is the case, a previous valid will of the testator may be admitted to probate; or otherwise, the testator will be deemed to have died intestate.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.