How to make a will legally binding

A will is a legal document and therefore needs to comply strictly with a range of requirements so as to ensure it remains valid and binding. If the requirements are not met, the will may not be formally binding and the deceased may be declared to have died “intestate”.

It may also be the case that the will is considered “informal”. There are a number of consequences and legal implications for wills which are considered to be informal.

Every will has a number of features that are required in order to make it legally valid. The following are just some of the features that will ensure a will is validly made:

  • Formation

In order to be validly made, a will must be either hand-written or typed and signed by the testator.

  • Witnesses

A will must also be witnessed by persons capable of witnessing testamentary instruments. The witnesses should be able to confirm that the testator has legal capacity to make a will and that the will has not made under duress or other circumstances which might be considered suspicious. It is important that the will is witnessed by individuals who are not beneficiaries of the estate.

Those present at the signing of a will are also required to sign the will along with the testator in order to attest to the fact that the will was made and executed in their presence and that they have witnessed the signature of all persons present on the will.  

What other considerations need to be included?

While the foregoing are important considerations when drafting a will, there are other matters which will need to be considered. It is worth noting that, while not always essential, the inclusion of an “attestation clause” which details the situations under which a will was signed is another important feature of a validly made will.

Attestation clauses are of particular importance in circumstances where the testator might be illiterate or visually impaired, for example.

The safest way to ensue that your will contains the correct legal language is to consult a experienced wills and estates lawyer who will be able to ensure these criteria are met.