Valid Wills

Is my Will valid?

A valid Will must satisfy the following essential criteria:

• It must be in writing (whether handwritten, typed or printed);
• It must be signed by you; and
• Your signature must be witnessed by two other people who also need to sign the Will. The selection of witnesses must be individuals who are not beneficiaries of your estate and who could not receive a benefit from your estate under the rules of intestacy.

Even where you have met these three requirements, your assets may not be distributed in accordance with your intentions. This may be a result of the wording of your Will.

The importance of words

The words used in your Will must be carefully chosen to ensure that your directions are properly carried out. It is important that where you intend to create an obligation in your Will, you unambiguously do so. The same is said where you only want to express a wish, not a binding obligation. As the Will drafter, you must ensure that your directions are clear enough for your executors to understand and carry out. Keep in mind, the executors and beneficiaries of your Will, will only be privy to the information in your Will after you have passed away, leaving you unable to clarify your wishes where a misunderstanding may arise.

Words to avoid 

In creating a binding obligation it is important to realise that words can give effect to different meanings and impose different obligations. In creating a Will that imposes legally binding obligations it is important to avoid words of ambiguity. For example the word “shall” may be misconstrued as to the duty that it imposes as it can be taken to mean “may, will or must”, and as a result its use has led to uncertainty, confusion and countless contested Wills. Further, the phrase “It is my wish” is often not deemed as a direction, but rather a non-binding term that need not be adhered to by an executor, used to give guidance to your executors or trustee of your estate.

If you would like a Will to be prepared, or are concerned that your Will may be misconstrued, you should consider speaking to the team at Antunes Lawyers. If you would like to prepare or update your Will, are an executor of an estate and require assistance, or have a query regarding an estate, contact our experienced Wills and Estates lawyers for assistance.