Validity Requirements for a Will
Max explains that a valid will must meet two main requirements: formal validity and essential validity.
Formal validity requires the will to be in writing, signed by the person making the will, and witnessed by two people who saw the person sign the will.
Essential validity involves the person making the will having the capacity to do so and knowing and approving the contents of the will.
Tony Skinner asks about the validity of a will made on a napkin, and Max explains that while it can be valid, it must comply with formal validity requirements.
Informal Wills and Their Criteria
Max discusses the concept of informal wills, which can include documents like video recordings or notes on a phone.
Informal wills must meet certain criteria: they must be a document, contain testamentary intentions, and show the person's intention to use the document as their will.
Proving the person's intention can be challenging, especially when the person making the will is deceased.
Tony asks about electronic signatures, and Max explains that electronic signatures are not currently allowed for formal validity.
Special Circumstances and Electronic Signatures
Max mentions a case in Victoria where a will signed with DocuSign was invalid due to the lack of a wet ink signature.
Some jurisdictions allow for witnessing via Zoom or other audio-visual methods, but they still require a wet ink signature.
Tony asks about the possibility of making a will online, and Max explains the process involves preparing the document separately and then witnessing it online.
Max emphasizes that special audio-visual witnessing provisions should only be used in special circumstances, not for convenience.
Wrap-Up and Next Episode Preview
Max reiterates that making a formally valid will is cheaper and easier, but if formal requirements are not met, it's still possible to get the document probated.
Tony thanks Max and asks for a wrap-up, and Max summarizes the importance of formal validity and the potential for informal wills.
Tony mentions that the next episode will cover the topic of capacity in relation to wills.