The Top 3 Mistakes When Drafting Your Will

by | Aug 14, 2023 | Wills, Wills and Estates

Three Simple Mistakes That Can Make Your Will Invalid

Drafting a will and other estate documents such as a Power of Attorney are one of the most common encounters we have with clients via our Wills and Estates Team.  At times, making an appointment to complete these important legal documents can seem tiresome and difficult but few people realise that a failure to ensure accurate completion of these documents can save time and headaches later on.

Our top three encounters where clients have made mistakes in attempting to draft documents are listed below but this is certainly not an exhaustive list:

  1. Signing with different pens

It may seem like a very small issue but when signing and witnessing a legal document, it is important that everybody uses the same pen.  It doesn’t matter if you are using a particular brand of pen but if you use different colours or a fountain pen, then the document can become invalid.  Its imperative when witnessing and signing your document, that your witness is physically present and you both use the same pen throughout the entirety of the document including when you date it.  This is one of the most common mistakes we encounter where there are attempts to set aside a will that was not drafted or completed by a solicitor.

2. Multiple staple holes

This may seem a little silly but there are very strict guidelines when wills are sent to the court to obtain a Grant of Probate or other important legal issue.  Never remove staples that are already attached in a legal document without first checking with a lawyer.  This includes where you wish to photocopy or scan the document.  If you do remove the staples and reattach pages leaving multiple staple holes this means that you will need to start over and sign and witness a brand new document as in most cases this will not be accepted.  This can be very frustrating particularly where you need to have two witnesses present at the same place and at the same time.  If you are assembling your will at home and have not done this in the presence of a lawyer, the staples should go in the top left hand corner.  Do not un-staple and re-staple.  Consult a lawyer first.  This means with the strict rules that you should not attach anything to your will.  No bull clips or anything that marks the document particularly in the top left hand corner.

3. Wrong witnesses signing

A very important aspect of the execution of a will is the independence of the witnesses.  When drafting a will with a lawyer, the witnesses are independent as they are usually the solicitor and an employee of the law firm making the process much simpler.  In cases where we see mistakes being made in Wills and Wills being set aside can relate to the witnesses not being independent and potentially beneficiaries of the estate or family members of the deceased.  There are very strict rules on who can and should witness a legal document particularly in NSW as well as rules on who can witness and give advice on a Power of Attorney.  We also frequently witness errors in a Will where persons have signed but not provided their full name and address or their signatures have been missing from key sections of the document.

In summary, it is possible to have your will drafted yourself or attempt to do part of this on your own but please be mindful of our top 3 tips.

Contact our Wills and Estates Team or make a booking on line via our website