In NSW the principal piece of legislation that deals with Will making is the Succession Act (2006) (the Act).
Section 6 of the Act sets out the requirements of a valid Will, which include that the Will is:
- in writing;
- signed by the Will maker (or by someone at the direction of the Will maker);
- signed by two or more witnesses present at the same time the Will maker signed the Will.
Should a Will not meet the requirements set out above all hope is not lost, as section 8 of the Act gives power to the court to ‘dispense’ with some or all of the formal requirements of a Will. The court however must be satisfied that the deceased intended it to be their last Will.
Interestingly enough, the court has exercised this power in a number of modern ‘digital Will’ cases. For example, in Yazbek, a NSW Supreme Court case, Justice Slattery held that a Microsoft Word document titled “Will.doc” was held to be the deceased’s last Will and the formal requirements required for a Will were dispensed with.
Mr. Yazbek, the deceased, had spent approximately 34 minutes writing out a letter of wishes to his family immediately prior to an overseas holiday. The court held that the document was Mr. Yazbek’s last Will for a number of reasons, including:
- the document was saved as “Will.doc”;
- Yazbek told people he had a Will; and
- The fact he made it prior to his holiday.
Whilst the court has the power to dispense with the formal requirements of a Will, it is best practice to have a solicitor drawn Will to ensure that the formal requirements are met.