How to sign a Will in Australia or you’re not out of the woods yet!
You are at the finish line – you are about to sign your Will. You have balanced the needs of your family, thought about your wealth distribution and your lawyer has drafted a protective and tax efficient Will. What could go wrong?
Successfully passing wealth to the next generation on your death is not as simple as most people want it to be. We often hear ‘you lawyers just make things so complicated!’ Maybe, but if you have taken the responsibility during your lifetime to look after your family through the careful accumulation of assets, why should you change this approach on your death?
Wealth transfer is serious business – too serious to be left to a post office Will Kit. We don’t say this because you have paid the post office $50 instead of paying a lawyer to prepare your Will (believe us when we say, we make more than $50 out of Will Kits gone wrong) but because failing to put proper thought into your estate planning will cause problems for your family that you will not be around to resolve, ranging from headaches in the administration of your estate to disputes and divided families.
In this article we want to give you some practical advice about how to sign your Will so that it will be accepted as your last ‘Will and Testament’ but also to give you the heads up about why legal advice in the preparation of your Will is very important.
If you are ready to take your family’s succession planning and wealth management to the next level by putting place a Will, contact us on 1300 654 590 or email us. We look forward to helping you implement a suitable plan for your family.
What could go wrong?
There is legislation in each State and Territory setting out how a Will must be signed. If you do not sign or execute your Will properly, it will not be accepted as a valid legal document – at least, not without a lot of hassle.
When you die, your Will (except in the cases of very small estates) will be lodged with the Probate Registry (there is one in each State and Territory). The Probate Registrar will examine the document and ask questions if the Will is not signed properly. These questions, known as ‘requisitions,’ can put a chill into the heart of even the most experienced lawyer. If your executor is unable to answer the questions to the satisfaction of the Probate Registrar, then your executor may not be able to obtain a Grant of Probate, without which they cannot properly administer your estate. Essentially, a Grant of Probate tells the world that, ‘yes, this is Mr X’s valid Will, and you may deal with his executor so that Mr X’s final directions about his estate are fulfilled.’ This careful process is designed to minimise the possibility of fraud and reduce disputes about which document(s) constitute a Will.
You may have heard stories of informal Wills being accepted – text messages, scribbled directions on a wall, videos etc., but behind all those ‘success’ stories there was more than one painful and exhausting visit to court – and we don’t want your family to go through that!
Notwithstanding the above, special rules apply to any person who is on active service as a member of a military, naval or air force of the Commonwealth. Such persons may dispose of their real and personal property by nuncupative will – an oral will made before witnesses.
Before signing the Will
Before the Will is signed:
- Your lawyer makes an assessment as to your capacity to make a Will to ensure you can fully comprehend and understand what you are signing. This may be a formal process or through observation. You may think you are killing time and having a simple chat about the state of the Royal Family or the World Cup, but for your lawyer it may be a way of assessing that you know what is going on. Sometimes your lawyer will ask you to obtain a medical certificate before making your Will. Don’t be offended. Having evidence that the testator had testamentary capacity will enable an executor to defend your Will if it is challenged. Disgruntled beneficiaries are quite capable of questioning your capacity, especially if you are ill or elderly at the time of making your Will.
- The will maker must have read, understood, and approved of everything in the Will. Even when their lawyer has prepared the Will according to your instructions, the document can sometimes seem, quite complex and wordy. When we prepare Wills, we read through and discuss the Will with you prior to signing it, so you fully understand the gifting, the implications and the operative provisions and mechanics of your Will.
- The will maker and their witnesses must initial any alterations to the wording of the Will before signing the Will. If possible we suggest making alterations to the electronic copy of the document, and re-printing rather than amending.
- The will maker must date the Will. If the Will is not dated, the question (and quite possibly a dispute) arises as to whether this document is in fact, your latest or only Will.
Who signs the Will?
You – the will maker or ‘testator’- must sign your Will. Further, somewhere in the Will, you must say, that by signing the Will, you intend it to be your Will. This is done via an ‘attestation clause’. An attestation clause describes that the witnesses saw you, the testator, sign your Will in their presence.
A short note on attestation clauses: When people prepare their own Will, they often leave out the attestation clause. If there is no attestation clause, at least one witness must make an affidavit that provides details about how the Will was signed and witnessed. The affidavit then needs to be submitted along with the Probate application after the testator’s death. If no witness is available following the testator’s death, the affidavit can be made by someone who was present when the Will was executed. Witnesses and others who were present when the Will was executed can often be dead or unavailable once the testator has died, so without an attestation clause, the testator’s signature cannot be proved. If there is no attestation clause or affidavit, it is difficult to obtain a Grant of Probate
Can someone sign a Will on your behalf?
Yes. There may be circumstances that prevent you from signing. Blindness or diseases like Parkinson’s or arthritis can make seeing or holding a pen impossible and some medications can also affect your ability to sign. However, the person signing can only do so on your behalf and at your direction. A special attestation clause will be included in your Will containing words such as:
‘The testator being [describe condition] and unable to [read or write], (NAME OF THE PERSON READING THE WILL TO THE TESTATOR) read this Will to the testator in the presence of (NAME OF WITNESSES) and then the testator stated that they knew and approved its contents. Then (NAME OF THE PERSON SIGNING THE WILL FOR THE TESTATOR) signed the Will with the name of the Testator at their request and in the presence of the Testator and both of us, all four persons being present at the same time, and we attested that the signature in the presence of the testator of (NAME OF THE PERSONS SIGNING THE WILL FOR THE TESTATOR) and of each other.’
It is very important that if the Will is signed on behalf of, or at the direction of the testator, there is ‘positive and discernible communication’ that the will maker wants the Will to be signed on their behalf by that other person. Your lawyer will be making lots of file notes at this point!
Where to sign the Will?
In the presence of your witnesses you, the will maker, must sign at the end of the Will and preferably at the foot of each (numbered) page as well.
Practical tip: Make sure everyone who needs to, goes to the bathroom before you start the Will signing process, so no one has to leave the room during the Will signing!
The signing of a Will must be witnessed. In Australia, legislation requires two or more witnesses present at the same time as the will maker signs. The purpose of the witness is to prevent undue influence, forgery, and fraud. They do not need to know the contents of your Will.
The witnesses must witness, by way of signature, each of the testator’s signatures.
The witnesses must attest the Will, that is, clearly indicate in writing in the Will, that they were present and saw the testator sign their Will (see notes on attestation clauses above). The signatures of the witnesses must be made in the presence of the testator (but not necessarily in the presence of each other).
Another practical tip: We recommend everyone uses the same pen as the will maker otherwise the Probate Registrar may question whether the testator and witnesses were in the room at the same time.
Who can be a witness? A witness must:
- Be over 18 years old;
- Legally competent;
- Not be a beneficiary; and
- They must be able to see (specifically required in NSW by section 9 Succession Act 2006 (NSW)).
We also recommend the witness
- Has an address in Australia;
- Not be related to you; or
- Mentioned in your Will (for example, as an Executor).
This is not to say these are ‘disqualifying events’ but you can avoid a lot of issues if you just take care. In choosing your witnesses, you must ensure there is nothing about these people that might compromise their independence (for e.g. they are related to a beneficiary) and give rise to a suggestion or argument later about your competency and freedom of testamentary discretion.
Who should be in the room?
Perhaps, the better question is who should not be in the room? Keep the beneficiaries out. This avoids questions and disputes later about freedom of testamentary discretion.
How many Wills?
The Will must not be executed in duplicate. There can be only one original, signed Will. However, photocopies of the Will can be made (see below for more on this).
Use of interpreters?
Someone who doesn’t speak or read English can make a Will.
If there are any issues with the testator reading or understanding English, an interpreter (preferably, a professional interpreter) must read the Will to the testator in front of the witnesses to the Will being signed. If the testator is illiterate, they can place a mark where they would have signed.
For the non-English speaking testator, the witnesses must state in writing that they heard the Will being read and observed the testator fully understand and approve what was written into the Will. For the illiterate testator, the witnesses must write into the Will that the mark was made by the testator. These declarations by the witnesses are special attestation clauses. These types of attestation clauses must be drafted very carefully.
After the Will is signed
This is where things can go pear shaped in the most surprising way! For such an important document, people can be very cavalier with it. We have had requisitions (remember these) from the Probate Registrar asking about doodles in margins, coffee stains, post it notes, paper clip indentations, evidence of multiple stapling, substituted pages and so on…
Writing: Nothing can be altered or written on the Will after it is signed. Don’t doodle or make notes on your original Will, do that on a photocopy. Don’t attach anything to your Will by way of a clip, staple or post-it note. How is the Probate Registrar (or anyone else) supposed to know what you mean by these notes? Almost worse is when there is evidence that ‘something’ was attached to your Will, and it is no longer there!
Binding: Be careful when binding a Will. Some Probate Registrars don’t like, for example, coil binding because these can be removed, and pages substituted into the Will. The best approach is to staple the pages of the Will together with a single staple in the top left corner following execution and put your Will away safely in a marked envelope.
Photocopies: Make a photocopy of the Will immediately after signing and before stapling and write on that if you must! If a photocopy of the Will is made after stapling, the staple must not be removed.
Staples: Why are we so obsessed about staples? If you (or someone else) remove the staple from and/or re-staple the Will, the Probate Registry will request an affidavit, asking your executor to explain why the Will has been tampered with. The Probate Registry can ask lots of questions if they are not satisfied with the condition of the Will. Trying to answer those questions may incur costs for your estate. In short, do not remove a staple!
Is this the definitive word on Will signing?
We wish it was. This article is the tip of the iceberg. The rules surrounding Will signing are many and nuanced. Your lawyer will help you to avoid most of the pitfalls as well as the many ways in which Will making can go wrong.
We do not like DIY Wills. In our view, the transfer of hundreds of thousands if not millions of dollars’ worth of assets should be done properly by someone qualified to advise you and who can draft the necessary documents and make sure you execute them in accordance with all legal requirements. If, you would like to put in place a Will or receive some advice about estate planning give our friendly team a call on 1300 654 590 or email us. If you need further incentive, read this.
If you have been considering preparing a Will or in the process of signing your Will, call us on 1300 654 590 or email us and let us deal with the complexities, so that you can rest easy knowing that your estate can be administered with ease once you’re gone.
The information contained in this post is current at the date of editing – 8 December 2022.