How to validate a homemade will

Examples of documents validated as a will

Examples of wills that have been declared valid in this way include:

• Homemade wills – A will made without the benefit of legal assistance that does not meet the legal criteria can be validated so long as it reflects the deceased’s testamentary intentions. Examples of homemade wills that have been validated include:
  
  
  • an unsigned will made using a will-kit where the will was consistent with the deceased’s testamentary intentions as discussed with her children at various times;
    
    

  • a group of documents that together set out what was to happen with the deceased’s estate, even despite some conflicts between the documents;
    
    

  • a series of notes in a notebook including funeral instructions and instructions for the distribution of property written in informal language;
    
    

  • an email expressing what was to happen to a person’s property after his death;
    
    

  • an electronically saved document entitled “final request” setting out how the deceased’s property was to be divided on his death;
    
    

  • written notes made by a lawyer of instructions given to him by the deceased over the phone; and
    
    

  • written notes made by a lawyer during an interview with the deceased (though not the audio recording of the interview, as this was not a “document”).
    
    

• Draft wills – Homemade draft wills have been validated in cases where the deceased had made notes for a will that they intended to take to a lawyer but died before doing so. Draft wills have also been validated in cases where the deceased had given instructions for a will but either (i) died before being able to sign it or (ii) did not think that he or she needed to do anything further. It would likely also be possible to validate a document where it can be shown that the deceased simply overlooked or forgot about signing the will. A draft will cannot be validated if the deceased had changed his or her mind about making the will.
  
  

• Suicide notes – There are a number of cases where suicide notes have been declared to be valid wills. However, the applicant must show that the deceased had testamentary capacity at the time that the note was written, and the court has previously declined to validate a suicide note where this was in doubt. The question in that case was whether the deceased’s “seemingly intemperate and rash decision was simply that; or was the product of an unsound mind”. Read more about testamentary capacity here.
  
  

• Handwritten changes to a will – The Court can validate handwritten amendments to the deceased’s will where those amendments would otherwise be invalid because they have not been properly signed or witnessed. Read more about handwritten amendments to wills here.
  
  

• Handwritten codicils – A codicil is a document that varies an earlier will and that is intended to be read alongside the will. Codicils must meet the same requirements as a will in order to be valid. Where a codicil is not valid – for example, where it was prepared by the deceased at home and was not witnessed – the codicil can be validated provided that it reflects the deceased’s testamentary intentions.
  
  
• Administrative errors – A will that has not been properly signed because of an administrative error is likely to be declared valid by the Court. For example, the Court validated a will signed by the will-maker’s spouse where both spouses accidentally signed each other’s wills. However, if the error is with the content rather than the execution of the will, then the error itself must be corrected. Read more about correcting errors in wills here.