Making a will in an emergency…some important things to be aware of…

by | Apr 6, 2020 | Wills & Estates

It is always best to have your legal adviser prepare or assist you with your will.  Family wealth succession and the financial futures of loved ones are too important to take a short cut. 

Your adviser can talk to you about your specific circumstances, ask the right questions and make sure your will is valid. 

Even though most people are confined to their homes for the duration of the COVID-19 shutdown, you can talk to your legal adviser via email, telephone and video call.  

In exceptional circumstances you may not be able to speak to your legal adviser, and you may wish to make a will urgently.  If this is the case, there are certain things you must do. 

The legal requirements for a will

Your will:

  1. Should be in writing and it should be clear that it alone captures your wishes on death;
  2. Should be signed by you on every page in the presence of at least two independent adult witnesses;
  3. The witnesses must sign each page of the will;
  4. Witnesses should not be persons taking a gift or your relatives.

If two independent adult witnesses are not available

You should sign your will in front of witness or witnesses who are available and write down on a piece of paper (not on the will document itself) why that witness or those witnesses were used. Include details of the special signing circumstances and sign and date that document too.   

In an emergency where no witnesses are available, you could have a video call with two people (or one if you cannot find a second person) who should watch you sign.  That person or people should write down and then sign a document which records what they witnessed, why it was carried out that way, their name/s, and the date. 

If you absolutely cannot find anyone to witness your signature, even by video, you should record in writing the situation you are in and sign both that document and the Will. 

Why is this necessary?

A document that does not meet the formal requirements for a will is often not a valid will.  The wishes contained in that document may be implemented or may be challenged by possible claimants after your death. 

You do not want leave your family with an expensive and uncertain Court case to have your wishes upheld. Note however, the Court is expected to take into account the extenuating circumstances of the current COVID-19 pandemic for example.  The more you can do to make your will compliant the better for your wealth succession and family.

If you have not reviewed your will recently, or have been thinking about making or updating a will, speak with your legal adviser as soon as possible.  While isolated and working at home might be the perfect time to reflect on an old will that probably doesn’t express your correct intention.  Call us if we can help.

Please contact Matthew Smith msmith@clw.com.au or Jack Rawe jrawe@clw.com.au should you require any assistance in this regard.