Is a will valid if a lawyer doesn’t sign it?

Date: Nov 21, 2011
Document Type: Article

In February this year Noreen was diagnosed with terminal lung cancer. It was her wish to die at home. Noreen lived by herself in her home town in a remote part of NSW. Her four children all lived interstate. Noreen’s niece Ngaire Blake who lived locally offered to move into Noreen’s house to care for her. Noreen had many visitors throughout her illness including her brother Jonah and his wife Nellie.

In September Noreen handed Ngaire an envelope and said,

            “This is my will. You don’t need to read it now. Just hold on to it until I die.”

Ngaire did not open the envelope but put it safely away in her top draw.

Noreen passed away this month. After Noreen’s funeral her children met at Noreen’s house to thank Ngaire and discuss Noreen’s estate. Ngaire told her cousins that Noreen had left a will. She gave them the envelope. Inside was a piece of paper which said,

“This is the last will and testament of Noreen Miriana Rama.

1.    I appoint as executor and executrix Jonah and Nellie Rama.

2.    I give the whole of my estate to the executor and executrix to

a.    Pay all my debts and funeral expenses

b.    To transfer the rest of my estate to my niece Ngaire Blake who has cared for me throughout my last illness.”

The will was dated 10 August 2011 and signed by Noreen and Jonah and Nellie who witnessed Noreen’s signature.

Ngaire showed Noreen’s children the will. Noreen’s oldest son said,

“I don’t care what this says. This place is ours. We are her children and we grew up here. That isn’t even a real will. It’s not signed by a lawyer.”

Ngaire believes that Noreen wanted her to have the house. Does Ngaire have a claim based on the document she was given by Noreen?

Under s6 of the Succession Act 2008 in order to be valid a will must be:

1.    in writing;

2.    executed by the testator or by another person in the presence, and at the direction, of the testator;

3.    executed, or the signature acknowledged by, the testator in the presence of two or more witnesses present at the same time; and

4.    attested to by each witness to the will in the presence of the testator

There is no requirement that the document be executed or signed by a lawyer. Ngaire has a good argument that the will is valid and that she is entitled to Noreen’s estate because the document meets the requirements set out in Section 6. Ngaire can bring an action in the Supreme Court to prevent Noreen’s children selling the house.

If you believe you are entitled to an estate but are being prevented from benefiting from a will you may need legal assistance. For advice from an experienced lawyer in this area contact Dominic Wilson on 8268 4000.

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