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When is a Will not a Will?

It may sound like a silly question.  We all know a Will when we see one.  They’re usually of fairly standard appearance – headed Last Will and Testament and signed by the will-maker and two witnesses.

But all may not be as it seems.

A case in point is the home-made Will of Kylie Smith (not her real name), that reads as follows:

LAST WILL OF KYLIE SMITH

I GIVE MY SON MICHAEL SMITH THE POWER TO DISPOSE OF MY POSSESSIONS PRIOR TO MY DEATH.

[SIGNED BY K SMITH IN THE PRESENCE OF TWO WITNESSES]

An essential requirement for a Will is that it be testamentary – meaning that it takes effect on the death of the will-maker and not until death. 

Kylie Smith’s “Will” took effect at the time she signed it (prior to her death) and not on her death.  It is therefore not testamentary and not a valid Will.

It is necessary to look beyond the heading and the signatures to determine whether a document is in fact a Will.

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