Frequently Asked Questions
Q: What are the general elements of creating a valid will?
The requirements for creating a valid will are for the most part, similar across all jurisdictions in Australia, and the following general elements must be followed to ensure that a legal will is created:
- the person must at least 18 years of age;
- the person must hold the intention to make the will;
- the will is made freely and voluntarily without outside pressure;
- the will maker must understand what is in the will and approve of the contents;
- two witnesses are to sign and acknowledge the will in the presence, and at the direction of the will maker.
The will must be in writing, and it must be signed by the will maker, or another person in the presence of, and at the direction of the will maker. Additionally, the signature can either be made, or acknowledged by the will maker with at least two witnesses present at the same time, and at least two of the witnesses must sign the will in the presence of the will maker. However, there is no requirement that the witnesses are to sign the will in the presence of one another.
Additionally, either the signature of the person creating the will, or another person signing in the presence of, and at the direction of the will maker must be made while holding the intention of executing a valid will. However, there is no requirement that the signature must be at the foot of the will.
In instances where a will is not formally executed, the court may still be satisfied that a will has been created, provided that it is satisfied that the deceased held the intention to create a will by looking towards other evidence that demonstrates intent.