Is Your Will Legally Valid?

You should know how important it is to have a will. If you don’t have one, everything you own will be divided according to the will of the government, which might not be your will at all. You don’t need to be wealthy to have a will; it’s not something you only need to consider when you own property. You can write your first will when you’re 18 years old and have nothing to your name but an AC/DC record collection.

It’s not enough just to write down your wishes on a piece of paper, sign it and stick it in your safe or filing cabinet. Wills need to meet certain legal requirements before they can be considered valid and legally binding.

What are those requirements?

  • Sound mind

Jokes from your family and friends notwithstanding, you need to have the mental capacity to understand what it is that you are doing, and you need to know full well what your assets are and how you want them divvied up.

One of the reasons why you need two witnesses is so that they can tacitly approve your mental competence. If you are a bit ditzy or there is any reason why someone could potentially dispute your will on the grounds that you were not of sound mind at the time of writing it, then you should ask your doctor to provide a professional assessment (The ‘Lectric Law Library).

  • Witnesses

You’ll need at least two witnesses and they will need to sign the will in your presence. This is quite important because, as Angelique Arde says in a personal finance article on IOL, your will is considered invalid if one of your required witnesses isn’t present when you sign it. You also need to be present when they sign it.

The whole point of having witnesses is to prove that the deal is on the up-and-up. If you work through all the details, sign on your dotted line and then go home and your financial advisor (or whoever is helping you write your will) gets someone else to sign the will in your absence, they’ve witnessed nothing.

Arde adds that the witnesses also need to sign the will in each other’s presence or, again, they’ve witnessed nothing of value. To say otherwise would amount to perjury.

(Note: Witnesses shouldn’t be beneficiaries; it’s considered a conflict of interest.)

  • Basic format

Your will needs to observe certain … niceties. It needs to start with the proper title and include a declaration that you are of sound mind, that this will revokes any previous wills, and that you’re making the will of your own free will. You also need to name an executor, usually a spouse or beneficiary (Free Legal Documents). If you don’t name an executor, an arbitrary person will be named on your behalf and your estate will have to pay executor’s fees.

  • Alterations, amendments and the like

Any and all changes to the will must be witnessed as per the witness requirements above. If it’s not witnessed it doesn’t count.

Wills can be exceedingly simple or so complex that it would take a school of lawyers three months to sort it all out (why you would do this is unclear, however). It can be as simple as leaving everything to your spouse, or your dog. It can be as complicated as trusts, bequests, donations, step-children, ex-spouses, second cousins twice-removed, business shares, house-sharing, conditions and unusual requests.

It doesn’t matter how simple or complex it is, your will needs to be legally valid to be honoured, so do yourself and your heirs a favour and ensure that you and your financial advisor or lawyer jump through all the requisite hoops.