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Legal Requirements for a Valid Will

There are a number of requirements that need to be fulfilled if a court is to consider a will to be valid. This article provides an overview of the factors that are required under New South Wales law and which must satisfy the courts.

Section 6 of the Succession Act 2006 holds that:

  1. A will is not valid unless:
    1. it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and
    2. the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and
    3. at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

To be valid a will, and its maker, must also meet a number of other requirements, which are generally framed in the negative. A will will not be valid if:

  • There is a lack of testamentary capacity.
  • The will maker is incapable by reason of legal disability.
  • The will maker does not have actual knowledge or has not approved the contents of the will.
  • There is the presence of fraud.
  • There is the presence of undue influence or coercion.
  • The forfeiture rule applies.

The above requirements are outlined below.

Testamentary Capacity

A will maker must be of sound mind when making their will. They must not be suffering from any mental disability or influence that would affect their mental faculties when making their will. The courts still commonly quote a passage of Chief Justice Cockburn in a case from as long ago as 1870(Banks v Goodfellow)when referring to testamentary capacity:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which if the mind had been sound, would not have been made.

Legal Disability

This simply means that a will maker generally has to be over 18 years of age. Minors (those people under the age of 18) are not considered to be fully legally capable. Their parents or guardian are considered to be legally responsible for them.

Knowledge and Approval

If the contents of a will were not known and approved by the will maker the will will not be admitted to probate, or if admitted probate may be revoked. This sounds simple enough, but what about those situations where only a portion of the will was not known or approved? The case that is often referred to in such instances is Re Fenwick [1972] VR 646, which contains a summary of many of the principles involved. As was stated in Fenwick's case:

In an appropriate case, probate may be granted in respect of portion only of a document executed as a will, omitting other portions where, for example, by fraud, mistake or inadvertence there has been included in the instrument words which in truth were not part of the will of the testator: Osborne v Smith (1960) 105 CLR 153.

In Fenwick's case the names of two beneficiaries were deleted. A couple of other principles from Fenwick's case are worth noting, namely;

The onus is on those who seek to have probate granted with words omitted to rebut the presumption of knowledge and approval of those words which arises from the due execution of the will;[And]

Where it is established that a will has been read by or to a testator, the presumption that the testator knew and approved of the contents of the will is a very strong one and can be rebutted only by the clearest evidence.


Probate will be refused where the fraud has been used to secure the execution of a will. The onus of proving fraud is on the person alleging fraud. The hurdle is a high one, and there will certainly be costs consequences where evidence of the grounds is lacking.

Fraud essentially involves some form of deception or misrepresentation that leads, persuades or influences a will maker to make their will in a way they would not otherwise have contemplated. As Powell J stated in The Public Trustee v Mullane The Estae of Robert Cornelius Mullane:

"Fraud" is to be regarded as extending beyond wilfully false statements, or the suppression of facts, which led the relevant deceased to execute a document which he did not understand to be a Will, or did not intend to operate as his Will, or to execute a Will under a misapprehension as to its contents (as to which, see, for example, Barry v Butlin (1838) 2 Moo PC 480.

Undue Influence & Coercion

Forceful persuasion and the act of bringing pressure to bear on someone does not amount to undue influence in a legal sense; as long as no benefit is conveyed against the will of the will maker there is an absence of undue influence. An element of coercion or force has to be present which induces the will maker to make a benefit contrary to their will. Fraud encompasses conduct involving deception, trickery, sham and misrepresentation and which leads to a will being executed that is contrary to the will maker's intent. It is incumbent on the person alleging undue influence to prove that it did in fact occur - there is no presumption of undue influence from surrounding circumstances - and that as a consequence the will was executed contrary to testamentary intention: Wingrove v Wingrove (1885) LR 11 PD 81 at.

As with fraud, where an allegation of undue influence is made but fails, costs will almost certainly follow the event.

The Forfeiture Rule

Under the forfeiture rule a person who unlawfully kills another is ordinarily denied enjoyment of the property which would otherwise have been acquired as a result of that death. Interestingly, this rule is relatively young in Australia by succession and probate standards. Its foundations probably lie in the rules of equity which are designed to prevent unjust enrichment of, and unconscionable benefits accruing to the perpetrator/beneficiary: Troja v Troja (1994) 33 NSWLR 269

The forfeiture rule is now governed by statute; the Forfeiture Act 1995.

Section 4(1)(a) provides that the Act applies to an unlawful killing, whether occurring within or outside the State of New South Wales. Section 3 defines unlawful killing as any homicide committed in the State that is an offence.

Section 5 provides:

  1. If a person has unlawfully killed another person and is thereby precluded by the forfeiture rule from obtaining a benefit, any interested person may make an application to the Supreme Court for an order modifying the effect of the rule.
  2. On any such application, the Court may make an order modifying the effect of the forfeiture rule if it is satisfied that justice requires the effect of the rule to be modified.
  3. In determining whether justice requires the effect of the rule to be modified, the Court is to have regard to the following matters:
    1. the conduct of the offender,
    2. the conduct of the deceased person,
    3. the effect of the application of the rule on the offender or any other person,
    4. such other matters as appear to the Court to be material.

Section 6 provides:

  1. The Supreme Court may make a forfeiture modification order in such terms and subject to such conditions as the Court thinks fit.
  2. For example, the Court may modify the effect of the forfeiture rule in relation to property:
    1. in the case of more than one interest in the same property (for instance, a joint tenancy) affected by the rule ---by excluding the operation of the rule in relation to any or all of the interests, and
    2. in the case of an offender who has an interest in real property (such as a family home) and personal property affected by the rule - by excluding the application of the rule in relation to all the property or some of the property.
    3. If the Court makes a forfeiture modification order, the forfeiture rule is to have effect for all purposes (including purposes relating to anything done before the order was made) subject to modifications made by the order.

We hope the above helps elucidate some of the basic requirements that must be adhered to when considering the validity of wills and testamentary intention. If you need assistance or advice in relation to a will Weblegal is able to assist.

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