Yes. In order for a Will to be valid, it must comply with certain legal requirements. These requirements will vary from State to State.
If the validity of a Will is challenged in any way, the executor’s application for Probate will be withheld until the dispute is resolved, usually by a court. A Will can be disputed in a variety of ways which are discussed below.
A Will must be in writing and the testator must be aged over 18. The testator must sign, or ‘execute’, the Will to show that he/she intended to give effect to it. This must be done in the presence of two (2) or more witnesses who are present at the same time and who must also sign the Will.
There are strict rules about who can be a witness and how changes to a Will can be made. Any changes made to the Will after it has been executed could be seen as tampering with the Will.
The validity of a Will may also be challenged for other reasons.
A skilled lawyer is able to provide advice as to whether a Will complies with the requirements of the law and assist you with an application to the courts if the Will is invalid. Click here for more information.
If a Will is found to be invalid, then the Estate will not be divided in accordance with its terms. If a valid earlier Will exists, then the Estate will be divided in accordance with that Will
If there is no earlier Will, then the testator will be considered to have died without a Will or to have died ‘intestate’. There are strict rules which state who of the deceased’s relatives are to receive a share of the Estate in the event of an intestacy. These rules also state who of the deceased’s next of kin is eligible to obtain Letters of Administration. This person is called the ‘Administrator’ and has the same duties and powers as an executor.
The testator’s wishes will of course not be complied wish if his / her Will is considered by a court to be invalid. It is strongly recommended that you receive advice from a solicitor about preparing a Will, or have a solicitor prepare a Will for you.