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What Happens if a Will is Torn or Marked? (NSW)

A will is generally valid if it has been made in accordance with the formal requirements of the state or territory where it was executed unless it is later revoked by the testator. A will that is not executed according to the formal requirements, such as an unsigned or unwitnessed will, may also be upheld by a court as valid if there is evidence that the testator intended it to be their last will. But sometimes a will is executed and before the testator dies, the will is torn or marked or otherwise damaged. This may happen by accident or as a deliberate attempt to invalidate the document. This article deals with what occurs when a will is torn or marked in New South Wales. 

Will is torn or marked in order to alter it

Under section 14 of the Succession Act 2006, a will may be altered if the testator and the witnesses to the alteration sign the alteration either in the margin or near the alteration or as authentication of a memorandum referring to the alteration and written on the will.

If a will is torn or marked in a way that appears to have been done with the intention of altering the will but without adhering to the formal requirements of signing and witnessing the alternation, a court will need to decide whether the will is valid with reference to evidence of the testator’s intention and the circumstances surrounding the document’s alteration. 

Will is torn or marked in order to revoke it

Section 11 of the Succession Act 2006 sets out the ways in which a testator may revoke a will they have executed. These include by making a later will, by executing a document that declares an intention to revoke the will or part of the will or by burning, tearing, or otherwise destroying the will with the intention of revoking it, or by writing on the will or dealing with the will in some way that satisfied the court that the testator intended to revoke the will.

Will is torn or marked accidentally  

If a will in New South Wales is torn or marked and there is no reason to believe that the testator intended to revoke or alter it, the executor of the estate will need to have the will declared valid by a court in spite of the damage. The executor will need to adduce evidence as to the circumstances under which the damage occurred and establish that the testator did not intend to revoke the will. 

Criminal offence of damaging a will 

Section 135 of the Crimes Act makes it an offence to damage or destroy another person’s will either during their life or after their death. The maximum penalty for destroying, cancelling, obliterating or concealing another person’s will is imprisonment for seven years.  

Testamentary capacity

In order for a person to revoke or alter their will, they must have testamentary capacity. Testamentary capacity is the ability to make a will. This means understanding the effect of the will and the operation of its provisions. The level of capacity required for a person to be said to have testamentary capacity depends on the complexity of the will and the number of claimants involved. 

If a person no longer has testamentary capacity and destroys or damages their will with the intention of revoking it, the will remains valid. However, if a person has testamentary capacity and deliberately destroys their will in order to revoke it, the will is revoked. 

What if the will is lost?

Sometimes family members of a deceased are aware that they have made a will but cannot find the original document. They may be in possession of a copy of the will or they may not have any evidence that the will exists. In this situation, what occurs will depend on the circumstances.  

If the original will was known to be in the possession of the testator, but cannot be found, it will be presumed that the testator destroyed the will with the intention of revoking it. 

If the original will was held by someone else and has been lost, the executor will need to produce a copy (signed or unsigned) to the probate office. They will need to prove that the copy is accurate, was validly signed and witnessed and that the will was not intentionally destroyed by the testator. If the executor cannot locate a copy of the will, they will have to try to track down where the original will was kept. If the will cannot be located, the matter will proceed according to the laws of intestacy. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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