There are special requirements that must be met in order for a Will to be valid. For example, (amongst other things) it must be in writing, signed by the person making it and witnessed by two or more witnesses.
Many people (who are unaware of these requirements) are now using “do-it-yourself” Will kits and preparing “home-made” Wills without obtaining proper legal advice. As a result, it is becoming increasingly common for family members to discover that their loved-one’s Will is unfortunately not valid after they have died.
In these circumstances, the Court has the power to approve the Will even though it is not strictly valid, if it is satisfied that the person intended it to take effect as their Will and that the document accurately reflects their wishes. For example, in November 2013, Bennett & Philp successfully got approval from the Court in relation to an electronic Will typed on an iPhone.
In some instances, a Will might contain clerical errors or other mistakes that prevent the document from carrying out the person’s wishes. For example, it might contain the wrong name of an intended gift recipient or state an incorrect amount of money to be gifted to someone.
In those circumstances, the Court has the power to rectify the Will so that it properly carries out the person’s wishes.
There are time limits that apply in these types of matters. Therefore, if you have concerns about the validity of your loved-one’s Will, you should contact our estate litigation team on +61 7 3001 2999 to seek expert legal advice as soon as possible.