What is a testator in a Will?

Question: What is a testator in a Will?

Answer: Any person that writes and executes a valid will in NSW is known as the document’s testator.

As testator of your own will, you will name the beneficiaries you wish to receive your assets after you die, appoint an executor and state your wishes for your funeral.

For a testator’s will to be considered valid, specific legal requirements, which vary between states, must be met.

How Does a Testator Ensure Their Will Is Valid?

Even though a will is perhaps the most important document a person will make in their lifetime, statistics show that almost half of Australians don’t have a current, legally binding will.

To ensure a will is valid, and assets are distributed according to their intentions, a testator needs to fulfil the following requirements.

  • Firstly, they must be of legal age at the time of making the will, that is, over the age of 18.
  • The will must be in writing.
  • The will must be signed by the testator.
  • The signature must be made by the testator in the presence of two or more witnesses who are not named in the will.
  • They must have testamentary capacity when making the will. This means they have the legal and mental ability to understand the implications of their will for those involved and are not impaired by mental illness or disability.

what is a testator in a willTestamentary Capacity: The Case of Ryan v Dalton

The case of Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 looked at whether the deceased, Francis James Ryan (“Frank”), had testamentary capacity when he made a will in 2013, at the age of 89. If he did not, the will he made 2 years earlier in 2011 would be admitted to probate instead.

The plaintiffs, in this case, were Frank’s three surviving adult children.

In the 2011 will, Frank specified that his estate was to be split equally between them.

In the 2013 will, however, the estate was equally divided between his children and his de facto partner Ms Malloy.

This was despite telling his children and partner that Ms Malloy and himself would keep their finances separate and the estate was to be left to his children.

The defendant, in this case, was Frank’s solicitor and executor of his will, Ms Dalton. Ms Dalton drew up both the 2011 and 2013 wills and was not named as a beneficiary in the estate.

Despite Ms Dalton’s recollections that Frank was of sound mind throughout the drafting of the 2013 will, medical evidence from his nursing home along with other witness statements showed otherwise.

The court eventually found Frank lacked testamentary capacity while making the 2013 will and granted probate of the 2011 will to the plaintiffs.

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