In order for your will to be legally valid, you must comply with the relevant laws in New South Wales. Section 6 of the Succession Act 2006 (NSW) states that a will is not legally valid unless:

• it is in writing and signed by the testator (which is the person who the will belongs to) 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).

Who can be a witness to your will?

Essentially, your witness can be any person over the age of 18, with the mental capacity required by law to witness documents.

Can a beneficiary witness the will?

If you have left a gift to someone under your will they are called a ‘beneficiary’. A beneficiary should not be a witness to that will. There are specific circumstances where a beneficiary is technically allowed to be a witness, however this is not recommended under any circumstance.

Can the solicitor drafting your will be a witness?

Yes, they can. It is not uncommon for the solicitor who drafts your will to be one of the witnesses. Although this is not a legal requirement, this may be a good thing for various reasons:

• A solicitor should know the formal legal requirements of executing a will properly and should be able to easily comply with these requirements as a witness themselves.  
• it can give the will more legitimacy if ever challenged for reasons of the will maker lacking ‘capacity’ to make a legally valid will (meaning lacking the mental state required by law to be able to make a will). A solicitor has an obligation to check whether the person had capacity before helping them make and execute a will. These factors can be significant in assisting to prove that the will maker had capacity.

What if you fail to comply with the formal requirements?

Then under New South Wales law, your will may be considered an informal will under Section 8 of the Succession Act.

An informal will can technically be anything from a post-it note to an audio tape, for example. However, in order to dispense with the formal requirements, the Court will need to determine whether the alleged informal will is claiming to be the ‘testamentary intentions’ of the deceased. This means the Court must be convinced that the deceased person intended it to be their will, form part of their will, or alter their existing will in some way.

Can’t I just prepare my own informal will then?

In circumstances where there is no other option, an informal will can be a useful tool to ensure that you have at least some sort of identifiable testamentary intention before death. For example, when you know your death may be imminent and you are either unable to get a solicitor to prepare a formal will or, the solicitor is unable to complete a formal will in time.

Under such circumstances an informal will is deemed appropriate, and if you ask a solicitor to prepare the will they would have a duty to prepare an informal will if the right, or rather unfortunate circumstances, called for it. The case of Fischer v Howe [2013] NSWSC 462, shows the type of case where entertaining the need for an informal will to be drafted by a solicitor mat arise. Later, in the case of Howe v Fischer [2014] NSWCA 286, it was found that the solicitor in that particular instance could not have been expected to have been aware that the client would die before the completion of the formal will and was let of the hook!

The bottom line is, if your situation is not dire, you should not rely on the creation of an informal will. Whether it be your drafting or the solicitor’s (although the latter is usually better). An informal will is far from an ideal way to state your testamentary intentions. This is because in order for an informal will to be validated by the Court, a Court case may need to be commenced, and evidence would need to be provided to convince the court that the document or material in question should be considered to be the deceased person’s testamentary intentions. This costs your estate money and can deplete the gifts you intend to leave to your loved ones. After all of that, there is no guarantee that the Court would validate the ‘informal will’.

We recommend that you don’t run these types of unnecessary risks and contact our Wills & Estates Team on (02) 8006 1596, for a free chat about creating a legally valid will today. It is both cheaper and less difficult than you may think.