If you make a will, you are the testator of that will.

At face value, a will is valid if:

1. It is signed by the testator;

2. The testator’s signature is made or acknowledged before two or more witnesses present at the same time;

3. The two witnesses also sign in the testator’s presence;

4. The testator’s signature was intended to give effect to the will.

These requirements are set out in detail in section 8 of the Succession Act 2023.

If these requirements are met and there is no question of testamentary capacity or that they did not know or approve the content of the will, then the will can be lodged for a “common form grant” when that person dies.  

A testator must have capacity to execute a will, and even if it is executed in accordance with the requirements of the Succession Act 2023, it may still be invalid if the testator does not meet the criteria set out in the Banks v Goodfellow test.

The Banks v Goodfellow test states that the testator:

1. Must understand the nature and effect of the will;

2. Comprehend the extent of the property being disposed of;

3. Identify the claims to or on their estate, that is, who they may have a duty to provide for,

4. Have no disorder of the mind impacting their decision making, for example schizophrenia or dementia;

5. They also need to be able to appreciate and weigh the claims on their estate, by considering points 1-3 above in their decision making process.

A common form grant of probate is the easiest and cheapest way to obtain a grant of probate.

On a will regular on its face and duly executed, capacity and knowledge and approval are presumed, and the Registrar of Probates grants in common form on proof of death and due execution without requiring those matters to be proved.

If the Registrar of Probates suspects that a person was not aware of the contents of their will, or they lacked capacity to execute the will, they may refer the will for a solemn form grant, or issue requisitions to investigate the circumstances of the creation and signing of the will.

Useful Clauses in Wills

A simple will is often the best will.

A clear appointment of an executor, with a substitute or substitutes, matters because it is the named executor who applies for the grant. It is recommended to speak to your executor to make sure they can do the job. An executor does not need to sign the will or agree to the appointment when a will is made, but they can revoke their status (refuse to do the job) when a person dies.

A clause revoking all previous wills should also be included as it avoids a situation where there are multiple wills and great confusion as to what should happen.

A residuary clause that disposes of everything not otherwise given avoids a partial intestacy, into which any failed or omitted gift would otherwise fall.

Sometimes these 3 types of clauses is all that is needed. For example, a will that simply revokes previous wills, appoints executors and substitute executors and gives the entire or residuary estate to a beneficiary or beneficiaries with substitute beneficiaries is very normal, simple and effective.

Families are often complicated and wills can be written to be flexible and adaptable when needed. Sometimes wills need to be written with later in life relationships, blended families, or adult children with disabilities or drug issues in mind. People can choose to create a “life interest” or a “right to reside” in their home in their will, to ensure that a family member has a roof over their head for the remainder of their life.

Often people may need to provide their estate to different people in different proportions in order to make things fair, or to take into account loans or gifts given in their lifetime. If a person decides to write specific cash gifts or different percentages of their entire estate to people, they will need to consider what their estate will be when they die in order for those gifts to be effective.

If there is a chance of an inheritance claim, a short statement of the testator’s reasons for the gifts, or lact thereof, is worth recording, since the deceased’s wishes and reasons are now the Court’s primary and a mandatory consideration when a person makes a claim.

For more tax flexibility and beneficary protection, people often consider a testamentary trust will.