Wills are regulated under Wills Act 1837. Every Will maker has to follow certain requirements to give effect to his/her Will. In this article, we will explore these requirements. This is a useful guide for somebody who is writing a Will by him or herself.
The person making a Will must be of at least 18 years of age. The person should also be of sound mind. He/she must be fully aware of his/her act of writing a Will. He/she must be aware of the extent of property he/she would like to pass on under a Will. The person writing a Will must not be suffering from any insane delusion which may affect his ability to write a Will.
It is very important to note that at the time of grant of probate, the burden of proof is on the person who puts forwards a will. Such person must prove that the requirements of a valid Will are fulfilled including the element of mental capacity.
The second requirement for a valid Will is the intention, which generally means that at the time of writing and signing the Will the person must have both general and specific intention of writing a Will and must have approved or consented to the particulars of the Will.
The person who is of sound mind has read the contents of the Will, signed it and has executed his/her Will, such person is presumed to have an intention of writing a Will.
Wills not personally Signed
Where a person has not signed the Will by him/herself due to poor health, medical condition, blindness, literacy and the Will is signed by another person, the evidence of intention (knowledge of the Will and approval of its contents) will be required by probate registrar to grant a probate.
Suspicious Will or Circumstances
In case of suspicious circumstances or where the Will is drafted by a person who is a main beneficiary under the terms of the will or who is a close relative of the main beneficiary, the person who has asked for the grant of the probate or who has put forward the Will must satisfy the probate registrar that that the Will is a genuine Will, and its contents were known and approved by the testator.
Fear, Force, fraudulent Wills and Undue Influence
Any force, fear, fraud or undue influence will render a Will invalid. The person who has asked for the probate has to prove that the testator had the intention of writing a will, had known and approved the contents of the Will without any fear, force, fraud or undue influence.
Signature and attestation
The Will must be signed in the presence of two witnesses. These witnesses will in return testify (attestation clause in the Will) that they are the witness to a signature of the testator. It is important to note that witnesses and their spouses or civil partners must not be beneficiary under that will. If a beneficiary or his/her spouse or civil partner signs the Will as a witness they will not get the gift left in a Will, however, such Will remains valid
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