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

A will is a legal document that reflects a person’s intentions for the distribution of their estate upon their death. Wills must be carefully stored and handled to prevent damage, as physical changes to the document can raise questions about its validity and interpretation. Whether these changes are intentional or accidental, the consequences can significantly impact the validity of the will and therefore the administration of the estate and the rights of beneficiaries. This article looks at what happens if a will is torn or marked in New South Wales.

Validity of a will

A will is valid in New South Wales if it is made according to the formal requirements outlined in the Succession Act 2006, so it must be in writing and signed by the testator in front of witnesses. A document that was intended to be a will but that does not meet the statutory requirements may still be accepted by the courts as an informal will. 

When a will is torn, marked, or physically altered, the court must determine whether these changes were made intentionally by the testator (the person who made the will) or accidentally, and whether these alterations render the will invalid. The court’s decision will hinge on factors such as the testator’s intentions, the timing of the changes, and compliance with legal formalities.

There are several scenarios in which a will may be torn or marked, each with distinct legal implications:

Accidental damage

When an original will is accidentally torn, stained, or damaged (such as by fire, water, or mishandling), it does not automatically invalidate the document. If necessary, the court will use other evidence to validate the will, provided its contents are still legible and there does not seem to be a deliberate intent to revoke the will. For instance, a will that is water-damaged or accidentally torn, but is still readable, is generally considered valid.

If an original will is accidentally destroyed or missing, the court may admit a copy of the will to probate under certain circumstances. The probate applicant must provide evidence that:

• the testator made a valid will
• the will was not revoked and
• the contents of the will can be reliably proven (for instance, by relying on a copy of the will).

Will is torn or marked as deliberate revocation

A testator may tear, mark, or otherwise destroy a will with the intention of revoking it. Under section 11 of the Succession Act 2006, a will can be revoked by physical destruction so long as the testator:

• intends to revoke the will, and
• personally performs the act of destruction (or directs someone else to do so in their presence).

Disputes often arise if a will is found damaged after a testator’s death, particularly if there are conflicting perspectives on the testator’s wishes. In such cases, the person challenging the document’s validity must provide evidence that the testator intended to revoke the will. This may involve the court examining:

• witness testimony
• evidence of the testator’s statements or behaviour
• supporting documentation, such as earlier wills, and
• analysis of the physical condition of the will.

If the Supreme Court of New South Wales determines that the testator did not intend to revoke the will, it can admit the document to probate, provided its contents are still decipherable. 

Alterations to the will

A testator may mark or amend a will to reflect updated wishes, such as by crossing out provisions or adding names in the margin. However, such alterations must comply with section 14 of the Succession Act, which requires the alteration to be:

• in writing
• signed by the testator, and
• witnessed by two people who sign the alteration in the presence of the testator.

If these formalities are not met, the alteration may be invalid, and the original terms of the will prevail.

Interference by third parties

A will may be torn or marked by someone other than the testator. If this occurs, the court must assess whether the changes were made fraudulently or accidentally, and whether the testator’s true intentions can still be determined. If someone deliberately damages or alters a will to manipulate the bequests, the court can invalidate the changes and impose penalties on the offender. Criminal charges may be brought under section 135 of the Crimes Act 1900 for fraudulently damaging or destroying another person’s will (before or after their death), with a maximum penalty of imprisonment for seven years.

In NSW, what happens to a torn or marked will depends on whether it was a deliberate or accidental act, and the testator’s intentions. Though deliberate damage made by the testator can revoke the document if that was their intent, accidental damage usually does not affect the validity of a legible will. The courts play a crucial role in resolving disputes over torn or marked wills, relying on evidence to ascertain the testator’s true wishes. By adhering to formalities, seeking legal advice, and securely storing wills, testators can reduce the risk of disputes and ensure their estate is distributed according to their intentions. Please contact Go To Court Lawyers if you need legal advice or representation on any legal matter.