Some ‘features’ of an Invalid Will

Estate plans negated by an Invalid Will cause untold family disruption and financial pressure on those left to tidy up after the deceased has passed. Wills have been found to be invalid for a number of reasons. The more common causes of the invalidity, include –

  • Incorrectly signed/ witnessed (or in fact, unsigned);
  • Witnessed by ‘inappropriate’ people; and
  • ‘incapacity’ on the part of the Testator.

What is the effect of an Invalid Will?

invalid will distorts estate distribution after tax costs

In Australia, in the absence of a valid Will the testator may be considered to have died intestate: that is, with no Will in place at all. The outcome from this situation will be determined by the Public Trustee (or equivalent) in the relevant jurisdiction – and will almost certainly have a different outcome from what the intending testator had planned. Apart from any available assets being distributed in different proportions from what might have been expected, the amount distributed will in most cases be diminished: firstly by the fees payable to the Public Trustee; and secondly, because of taxation consequences of the (poorly structured) estate distribution.

Alternatively, it may be appropriate for application to be made to a Supreme Court for Letters of Administration to be issued; and a declaration that the invalid Will be declared valid. The viability of the process and the extent to which it will be pursued, will need to be determined by the intended Executor and/ or the substantive intended beneficiaries.

Legal advice will almost invariably be required in making the determination; and most certainly, to pursue the matter through the Court.

How can you avoid the three most common causes of your Will being declared invalid?

Correct signing of the Will (and other estate planning documents) –

When signing the Last Will and Testament it is necessary that there be two adult, independent (non-beneficiary) witnesses present to witness the signing: they must be present, together when the testator signs – and it is becoming common practice that all three (the testator and the two witnesses) sign the document using the same pen, preferably in black ink.

Each page of the document needs to be signed by all three parties; and the final page will require additional information such as printed full names and addresses  of the witnesses. Your estate planning legal adviser will instruct you appropriately at the relevant time, but if for reasons of urgency or convenience you are unable to have the legal adviser present, following the above should secure the validity of your Will in this particular respect.

Witnessing by ‘inappropriate’ people –

It is not appropriate to have a Last Will and Testament witnessed by a prospective beneficiary of the future Estate: and so if there is a broad category of beneficiaries mentioned in the Will documentation, ensure that the witnesses are not potentially a beneficiary of the Estate. This can arise for instance, if a Testamentary Trust includes a broad family-related definition of prospective beneficiaries.

It is also inappropriate to have a person under the age of 18 years, witness the signing of the Will. Witnesses are not required to read or to have an understanding of the provisions of the Will, but they should be aware of the nature of the document (that it is a Will) – and they should be mentally competent at the time they witness the document.

Incapacity on the part of the Testator –

By incapacity here, we refer to competence to make life-dependent decisions (mental capacity). This is a source of anguish for families who are challenged with parents or other loved ones who are experiencing metal health issues and whose estate planning is either requiring change – or is yet to be undertaken. This is a serious consideration that is to be handled quite delicately, but in a structured way – and should only be undertaken with the guidance of experienced estate planning lawyers.

A Will signed by a person considered to ‘lack capacity’ is a rich pasture for challenge – and as the costs of challenges are likely to be paid from the estate regardless of the outcome, it is well worth ensuring that this matter is properly considered and dealt with.

How to prepare for Estate Planning peace of mind – and valid documents –

Estate Planning is one of the wealth management services available at Continuum Financial Planners Pty Ltd, where our advisors are skilled and experienced at listening to your financial and lifestyle goals and aspirations, confirming a proper understanding of your objectives – and suggesting solutions to the question as to the appropriate strategy in your particular circumstances. To minimise the risk of your Will being declared invalid, meet with your adviser to review your estate plan: call on 07-3421 3456; or use the Contact Us form on our website, for prompt attention to your needs.

(This article was originally posted in September 2013: it has been updated and/ or refreshed occasionally, most recently in April 2021.)