Will of a minor
Generally a will made by a minor, that is a person under 18 years is invalid. In New South Wales, legislation provides certain exceptions to this rule all relating to a minor who is married or contemplating marriage or by order of the court.
Joint Wills
A joint will contains the testamentary intentions of two or more people. On the death of either person, providing the will is properly executed, probate will be granted as the separate will of that person. However It is not desirable because it may lead to confusion.
Revocability of a will
A will is always revocable even if there is a binding contract not to revoke it or the will contains a statement that it is irrevocable. Remedies may exist for revocation under general legal principles but a will in no circumstances will be re-instated.
Will as a mere statement of intention
A will is a statement of intention so a testator is at liberty to dispose of assets referred to in the will prior to his or her death and an executor can sell property for the purposes of administration of the estate even if it is the subject of a specific gift in the will.
Attestation Clauses (where you sign)
There is no legislative requirement to include an attestation clause in a will, however, it can provide prima facie evidence that the will has been signed in the correct manner and no further evidence is required as to the matters relating to the presence of witnesses when a grant of probate is applied for.
The meaning of the term ‘estate’
Generally, the estate includes all property owned by the deceased at the date of death which will be transferred to the executor. However, it should be noted, that when contesting a will the term may mean the net distributable estate, that is the property available to be distributed after payment of all beneficiaries and may not include notional estate.
Persons under a legal liability
They are persons who lack the capacity to manage their own legal affairs, for example minors under 18 years or those over 18 years with a psychiatric or physical impairment which renders them unable to make decisions in their own interests or those decisions required to be made in relation to the proceedings to contest a will. In all states, the legislation provides for another person to be substituted to make those decisions in proceedings contesting a will.
Personal effects
In contesting a will whether an item is determined to be a “personal effect” depends on the nature of the item and also the purpose for which it was used at the date of death. Generally they include all items of household or personal use or decoration and exclude items used purely for business purposes, currencies, securities or interests in land.
Court authorised wills
The Supreme Court of NSW may make a will for a person who is judged by the court to be incapable of making his or her own will.
Suicide and will making capacity
The suicide of a testator or the death of a testator who was subject to an order for his or her financial affairs by any Tribunal or management of his or her affairs does not perse show or give rise to any presumption of testamentary (will making) incapacity.
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