Common Errors that make Wills Harder to Execute

5th December 2023

It is important that you take care of your Will once it has been made. As the RMB Lawyers Wills & Estates & Disputed Wills division explains, failure to do so can lead to issues when it comes to the administration of your estate.

When you die, it is usually necessary for the executor of your Will to apply for a Grant of Probate from the Supreme Court to establish their authority to deal with your assets.

Probate is effectively an order stating that the Will your executor has submitted is your last Will, and therefore binding on your estate.

When applying for probate, the original Will needs to be filed with the registry. The Court will then review the original document and ensure that there are no irregularities on which they require further information before granting probate.

The Court will pick up on matters the Will-maker may have deemed trivial with respect to the storage of their Will.

One of the most important things to do is check that your Will has been properly executed in the presence of two independent witnesses (not beneficiaries of the estate or their partners). It is best practice that the Will be signed by each witness on every page using the same pen, as in this case there is no doubt that everyone was present at the same time.

If the Court is not satisfied that this occurred, they are likely to issue a requisition that will require the executor to obtain affidavit evidence from one or both witnesses before admitting the document to probate.

Another common issue is the presence of marks on the document (such as signs that staples were removed) that may suggest another document or page has been attached or removed.

It sounds like such a trivial thing, but a Will should never be unstapled, particularly where the pages are not numbered and there is any chance that the Court could conclude that a page was removed or switched out after execution. Again it is likely that the Court will issue a requisition requiring an affidavit to be sworn explaining the marks in the Will.

Depending on the circumstances in which the Will was made and stored, this could be a difficult affidavit to obtain, particularly if the Will is self-made.

Other common mistakes include making alterations to an existing Will by writing on the document (a new Will should always be made) and not initialling amendments at the date of execution.

If you or your family have further questions about executors or your Will in general, your first step should be to contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.