Probate actions—want of due execution
Probate actions—want of due execution

The following Wills & Probate practice note provides comprehensive and up to date legal information covering:

  • Probate actions—want of due execution
  • The formal requirements
  • 'In writing'
  • 'Signed by the testator'
  • 'Or by some other in his presence and by his direction'
  • 'It appears that the testator intended by his signature to give effect to the Will'
  • 'The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time'
  • 'Each witness either (i) attests and signs the Will; or (ii) acknowledges his signature , in the presence of the testator (but not necessarily in the presence of any other witness)'
  • Professional negligence
  • Privileged Wills
  • More...

In order to validate their Wills testators dying before 1 January 1964 must have followed the execution formalities set out in the Wills Act 1837 (WA 1837) and Wills Act Amendment Act 1852 (WAAA 1852). For testators dying on or after that date the Wills Act 1963 (WA 1963) provides relief from the rigidity of those earlier Acts.

Amendments in the Administration of Justice Act 1982 (AJA 1982) extend the availability of limited reliefs to those testators who make errors in execution but only in respect of those who die on or after 1 January 1983.

As amended, the execution formalities now provide that a Will shall not be valid unless:

  1. it is in writing and signed by the testator or by some other person in his presence and by his direction and

  2. it appears that the testator intended by his signature to give effect to the Will, and

  3. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and

  4. each witness either:

    1. attests and signs the Will

    2. acknowledges their signature

    in the presence of the testator (but not necessarily in the presence of any other witness)

but no form of attestation shall be necessary.

If a Will does not comply with these formalities, it will not be admitted to probate unless it can either be incorporated

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