IMPORTANTE: Leer atentamente las consignas. Se tendrá en cuenta la presentación ​prolija del
examen. Las respuestas deben ser redactadas en castellano. Se recomienda administrar correctamente
el tiempo para leer y resolver las actividades; reservar un margen de 10 minutos para revisar y corregir
las respuestas.

Explicar o responder, según corresponda.

1) ¿​Cuáles son los requisitos para que un testamento sea válido en

Australia? (4)

2) ¿Qué procedimiento se recomienda para la firma del testamento

por parte de los testigos?

3) ¿Cuál es la importancia de las cláusulas de fidelidad? Explicar un

ejemplo.

4) ¿Qué circunstancias permiten que el beneficiario sea, a la vez,

testigo del testamento? (2)

5) ¿Qué son los Testamentos Informales? Dar un ejemplo.

http://legalanswers.sl.nsw.gov.au

Making a valid will. A will should comply with the legal requirements of executing a will which
are found in section 6 of the ​Succession Act 2006.​ Unless each and every one of the requirements
below is met when making a will, the court may not consider the will to be valid and the estate will
be dealt with as if there were no will (as an intestate estate). The requirements for making a valid
will are:

● it must be in writing, either typed or handwritten

● it must be signed by the will-maker or by some other person in the presence of and at the
direction of the will-maker

● the will-maker's signature must be made or acknowledged in the presence of two or more
witnesses, present at the same time

● at least two of those witnesses attest (witness) and sign the will in the presence of the
will-maker (but not necessarily in the presence of each other)

● the signature of the will-maker or person signing at the direction of, and in the presence of
the will-maker must be made with the intention of executing the will.

It is not essential that the will-maker signs at the foot of the will. It is not essential for a will to
have an attestation clause.A witness does not need to know that it is the will-maker's will that they
are witnessing (section 7).

Signature by direction

As noted above, section 6(1)(a) allows for a will to be signed by a person other than the will-maker,
in the presence of and at the direction of the will-maker. This is useful if the will-maker is unable to
sign for some reason. If it is necessary for a will to be signed in this way, it is highly advisable to
seek advice from a lawyer.

Signing and witnessing a will

Signing a will. ​Although the legal requirements have been relaxed over time, it is still advisable
for the will-maker to sign the will at the foot or end of the will and on each page, and to initial any
alterations.

Witnessing a will. ​Although the law allows the witnesses to sign the will separately, without
being in each other's presence, as long as they are both present together when the will-maker signs
the will, it is advisable that the will-maker and the witnesses all sign immediately after each other
and in the presence of each other, and use the same pen. This is still the best way to make sure a
will is validly executed because then there can be no argument that the formal requirements were
not complied with.

Attestation clauses

Although an attestation clause is no longer necessary, most wills have one. It records the
circumstances of the signing and witnessing of the will. Attestation clauses are particularly
important in some situations. For example, if the will-maker cannot read the will, it should be read
to them (preferably by one of the witnesses), in the presence of the other witnesses to the will. The
attestation clause should then record the circumstances. If the will-maker cannot write, they can
place a mark where they would otherwise sign and the attestation clause should state that because
the will-maker was unable to sign, a mark was made by them in place of a signature. Alternatively
if someone else signs by direction for a will-maker who is physically unable to sign, the attestation
clause should reflect the circumstances.

Who can be a witness? ​A beneficiary should not be a witness as they may lose their
entitlement under the will. Section 10 now allows the spouse of a beneficiary to be a witness.
Section 10 also allows a beneficiary to be a witness if one of the following circumstances applies:

● there are at least two other attesting witnesses who are not beneficiaries

● written consent is obtained from all who would benefit directly if the gifts to the witness
were not allowed; or

● the court is satisfied that the will-maker knew and approved of the gift and made it freely
and voluntarily.

It is still recommended that a beneficiary does not witness the will.A person who is unable to see
that a will-maker has signed a document cannot act as a witness to a will. That includes someone
who is temporarily unable to see (section 9).

If a will is not witnessed ​Section 8 of the ​Succession Act​ sets out when the court may
dispense with the formal requirements for the execution, alteration or revocation of a will, for
instance if it has not been properly witnessed. If you are unsure whether an informal document
might be held to be a valid will, you should seek legal help.

INFORMAL WILLS 

Since 1989 the court may consider that a document is a will, even if the document has not been
executed in accordance with the formal requirements of the Act. The court must be satisfied that
the deceased person intended the document to be their will.

A minimum requirement to satisfy this section is that there is a 'document'. However, a tape
recording by the deceased person has been admitted as a will in exceptional circumstances. More
usually, documents that do not satisfy the formal requirements in some way (for example, with
respect to witnesses) have been admitted. If you are not sure whether a document is a valid will,
you should refer it to a lawyer.

Even though the section 8 exists, it is still recommended that you execute your will in accordance
with the formal requirements.