In NSW there are certain formal requirements required by law in order to make a valid Will. Whilst “compliance with formal requirements for the making of a Will…may involve unwanted expense and inconvenience for a prospective Will-maker” during their lifetime, a failure to observe these formalities in life can lead to large unintended expenses after death when the intended beneficiaries, and potential claimants on an estate are forced to ask a Court to determine the deceased’s wishes.
Where a person leaves a document that does not comply with the formal requirements for the making of a Will, the matter normally has to be determined by a Court. The Court in turn places a premium on “substance over form in ascertaining the testamentary intentions of a deceased person, and in seeing that his or her beneficiaries get what is due to them”.
In 2012 an 85 year old Will maker died leaving a formal Will and a short video Will. “She expressed a strong desire to speak to her children in making her intentions known to them after her death. She could have done that in a video not intended to have legal consequences” but instead she made a video Will seeking to make additional gifts of money to her children over and above any provision she had made for them in her formal Will of two days earlier.
Whilst this case was a novel one in that a video Will was approved by the Court it was not without its associated difficulties not the least of which being additional delay and expense incurred by the estate in seeking to have the Court determine the deceased’s wishes. The Court was at pains to stress that for the person making the Will and his or her beneficiaries their interests “are best served by compliance with the formalities prescribed by law for the making of a valid Will. They are not intended to be onerous or to do otherwise than to facilitate the orderly administration” of estates according to law.
At Everingham Solomons we have the expertise and experience to assist you in making a Will that is in conformity with current law and deals with your particular circumstances because Helping You is Our Business.
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