When emotions are high and time is short, it’s perfectly understandable that you, or a loved one, may want or need to quickly write or amend a Last Will and Testament. But, while urgency may be crucial, it’s equally important that any legacy decisions and documentation are made precisely and correctly.
Failing to meet the strict legal requirements for Emergency Wills can mean wishes aren’t followed, assets aren’t distributed in line with the Testator’s (Will-maker’s) intentions, and the Will is open to challenge. We are here to help you avoid those circumstances.
How Are Emergency Wills Different to Regular Wills?
Here’s the key point — they aren’t. At least, not in their legal structure or rules.
What typically defines an Emergency Will is that it’s created quickly in time-critical situations — often needed due to your, or a loved one’s, sudden injury, illness, or approaching demise. It ensures that, despite the pressing and upsetting circumstances, the Will-maker’s wishes are clearly communicated and followed.
This means that, unlike ‘normal’ Wills — which are often planned and discussed over weeks or months — Emergency Wills are typically created in situ, at home or in a hospital or care facility. They are drafted, printed, signed, witnessed, and formalised in just a few hours — often on the same day.
Their legal requirements remain seriously rigorous — to rightly protect the Testator, the estate, and the beneficiaries. This means in every single aspect, they adhere to exactly the same legal framework as standard Wills — without any compromises.
The Rules Emergency Wills Must Follow in NSW
For any Will to be valid and formal, it must abide by Section 6 of the NSW Succession Act (2006).
This declares that for a Will to be correctly executed, it must:
Be in writing and signed by the Will maker (the Testator).
The signature on the Will is made in the presence of at least two witnesses.
These witnesses, who saw the Testator sign the Will, must also sign and attest the Will in the same pen.
The Testator has to sign the Will with the complete intention of its contents being adhered to in the event of their passing.
Therefore, all Emergency Wills have the obligation to follow these rules. Short time frames, pressing circumstances, or the Will-Maker’s compromised condition are not allowable excuses for failing to meet these regulations. Any Will that falls short runs the risk of being declared an Informal Will — and deemed to be invalid.
Informal Wills — What They Are and What They Mean for the Estate
An Informal Will is any purported Last Will and Testament that doesn’t follow the rules above. This could be a Will which…
was signed by the Testator without witnesses present.
was signed electronically.
is a scribbled note on a piece of paper.
functions as a text message sent by the Will maker.
is an oral deathbed Will.
was made online, a DIY Will with vague or unclear wording.
is a smartphone video recording of the Testators’ estate intentions.
was witnessed by people who are also beneficiaries.
has no formal assessment of testamentary capacity.
Making a Will in the above manners or formats will not meet the Emergency Will legal requirements.
The Possible Consequences of an Informal Will
- The Will is rejected by the court for Probate.
- Creating worry, expense, and confusion for loved ones.
- The Will is ignored, and an earlier Will — if one exists — is used instead.
- The Public Trustee divides the estate as they see fit, based on intestacy rules.
- Intended beneficiaries receive nothing.
- The Testator’s alleged wishes are ignored.
- People disliked by the Testator gain an inheritance.
Testamentary Capacity — An Often Forgotten Requirement
For someone to create a Will — Emergency or otherwise — they must have testamentary capacity.
As stated in the benchmark case of Banks v Goodfellow (1870), the Testator needs to:
- …know what a Will is.
- …understand the extent of their assets.
- …grasp who will benefit from their Will.
- …know the power and legal implications of a Last Will and Testament.
- …make the Will without pressure, coercion, or influence.
Not all lawyers are comfortable attending hospitals or other facilities during urgent circumstances — either to make an Emergency Will or check for testamentary capacity — since these moments can be confronting and upsetting.
Some solicitors prefer to avoid the responsibilities, which can include testifying in court to confirm the person’s state of mind during Probate. Falzon Legal is willing to do this — with such a court appearance included in our fee.
The Value of a Lawyer in Meeting Emergency Will Requirements
Experienced Emergency Will solicitors take away the risk, stress, and uncertainty in time-crucial and emotionally charged situations. They ensure that this invaluable document is legal and valid.
The most reputable lawyers will:
- Provide emergency, out-of-hours appointments — even on the same day.
- Attend any local location — private homes, senior care facilities, and hospitals.
- Bring everything needed to complete a Will in a single visit — including a mobile printer.
- Assess testamentary capacity — with care, professionalism, and dignity.
- Provide witnesses — if you have none available.
- Print and execute the Will on-site — with the Testator and witnesses present.
- Retain comprehensive records — should they be required later in evidence.
- Willing to testify in court — during Probate to confirm testamentary capacity.
With Falzon Legal, all the above services are included as standard in our Emergency Will service — delivering reassurance to you and your loved ones.
When Time Is Short and Emotions Are High, You Need Falzon Legal
If you need a Will urgently — either for a loved one or yourself — don’t run the risk of it being declared invalid.
Experienced and knowledgeable in the legal requirements for Emergency Wills, we ensure that Last Will and Testaments meet all current rules — yet are created with the utmost compassion and dignity at the most difficult of times.
