The Signature Slip-Up: How Improper Signing Can Invalidate Your Will
Wills - Potential Problem #5: Not Signing the Will Properly
In New South Wales (NSW), Australia, the requirements for signing a will are specific and must be followed precisely to ensure its legality. This article explores the implications of improper signing and highlights a real court case that demonstrates the potential pitfalls.
Real NSW Court Case
The case of In the Estate of Gilmour [2017] NSWSC 1453 underscores the importance of correctly signing a will. This case illustrates how a seemingly minor error in the signing process can lead to significant legal challenges.
What Happened
The issue arose when Mrs. Gilmour, a retiree, drafted a new will but failed to sign it correctly. Although she had the best intentions, she did not adhere to the required legal formalities. Her will lacked the necessary signatures of two independent witnesses, a crucial requirement under NSW law. This oversight led to a dispute among her heirs after her passing.
Participant Behavior
Mrs. Gilmour’s children, unaware of the incorrect signing, believed the will to be valid. However, upon presenting it for probate, the court identified the error. The lack of proper witness signatures led to a contestation by one of the heirs who stood to benefit more under the intestacy rules than under the will’s provisions.
Legal Process
The legal process involved determining whether the improperly signed will could still be admitted to probate. The court had to assess if there was clear and convincing evidence that the will reflected Mrs. Gilmour’s true intentions, despite the signing error. This included examining testimonies from the witnesses who were present but did not sign the document as required.
Financial Implications
The estate, valued at approximately AUD 750,000, was significantly impacted by the legal fees incurred during the dispute. The cost of contesting the will and seeking validation amounted to over AUD 100,000, reducing the overall inheritance for the beneficiaries. The financial strain and prolonged legal battle further exacerbated the family’s emotional distress.
Conclusion
Ultimately, the court determined that the will could not be admitted to probate due to the improper signing. The estate was distributed according to the intestacy rules, which did not align with Mrs. Gilmour’s intended wishes. This case highlighted the critical importance of adhering to legal formalities when signing a will.
Lessons Learned
- Follow Legal Requirements: Ensure that your will is signed in the presence of two independent witnesses who also sign the document.
- Legal Advice: Seek legal advice to ensure that all formalities are correctly followed when drafting and signing your will.
- Regular Reviews: Regularly review your will to ensure it meets all legal requirements and reflects your current wishes.
- Clear Instructions: Provide clear instructions to your witnesses to ensure they understand their role in the signing process.
References and Sources
- In the Estate of Gilmour [2017] NSWSC 1453
- NSW Government - Wills and Estates
- Legal Aid NSW - Signing Your Will
Tags and Keywords
Signing a will, estate planning, will validity, NSW court case, family dispute, legal advice, In the Estate of Gilmour, financial impact, witness requirements
