The position is that Part VII of the Succession Act 1965 sets out a number of legal requirements for the making of a valid will:
- It must be in writing;
- The testator must be over 18 years of age (the testator may be under 18 if he or she is or has been married);
- The testator must be of sound mind;
- The testator must sign or mark the will in the presence of two witnesses;
- The two witnesses must sign the will in the testator's presence;
- The witnesses cannot be beneficiaries of the will;
- The witnesses must see the testator sign the will;
- The signature of the testator must be at the end of the will.
These statutory provisions, as interpreted by the superior courts in relevant case law, provide robust safeguards in relation to the validity of wills.
It is, of course, possible for a person to commence legal proceedings challenging a will on the grounds of either the diminished capacity of the testator to make a valid will, or the testator's ability to make decisions freely in disposing of their property by will.
When determining whether or not a testator had the capacity to make a will, courts will generally consider whether they understood the nature of the act of making the will and its effect, and whether the testator understood the extent of the property of which they were disposing.
Where undue influence is alleged, the law places the burden of proving such undue influence on the person alleging it. In order to succeed, the court must be satisfied that:
(a) The person alleged to exert the influence had the power or opportunity to do so;
(b) Undue influence was in fact exerted; and
(c) The will was the product of that influence.
While I have no current plans to amend legislation in this area, the operation of the relevant legislation is kept under review by my Department.