Making a will

Contributed by Maree van der Kwast and current to 1 September 2005

VALIDITY OF A WILL

Formal requirements

For a will to be formally valid there are several requirements to be complied with. These are contained in section 8 of the Wills Act 1970 (WA). The requirements are:

• the will must be in writing;
• the will must be signed by the will maker in the presence of two (2) witnesses; and
• both witnesses must sign the will when both are present with the will maker.

Informal wills

Sometimes, even if a document does not satisfy the requirements of section 8 of the Wills Act it can still be a valid will. It is what is called an informal will.

Section 34 of the Wills Act 1970 provides that a document “purporting to embody the testamentary intentions of a deceased person” is a will of that person if the Court is “satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will”, even though the formal requirements have not been met.

The Court will try and decide whether the person intended that document, without anything more, to be a will. It is often a very difficult determination.

Ascertaining an intention to draft a will

Two court decisions can be contrasted. The first concerned a man who attended a solicitor and gave him instructions to draw up a will. The will was duly drawn up, but the man died unexpectedly two days later before he signed the will. The Court said that there was no sufficient evidence to show that the man intended that the document would be his will: Re Estate of Frederick Raymond Reeve Perriman (Dec) [2003] WASC 191.

In the second case, a man gave instructions for his will to an officer of the Public Trustee, but then committed suicide before he could sign the draft that was prepared. By his body was a piece of paper in which he referred to the draft as a will. The Court said that under these circumstances, there was enough to show that he intended that the document should be a will: Re Vaux (1986) 41 SASR 242.

WITNESSES

A gift by the will maker in his or her will to a witness or the spouse of a witness is of no effect. As a general rule, the witnesses to a will should not be any of the persons named in the will, nor the spouse of any of those persons.

CAPACITY TO MAKE A WILL

In order to make a will, the will maker must have what is called ‘testamentary capacity’. That means that they must understand the nature of the will as an instrument disposing of assets upon death and that they must:

• be aware of the estate they have to dispose of;
• be aware of the persons they wish to benefit;
• be aware of the extent of that benefit; and
• give consideration to those persons who would, in the ordinary course, be expected to be beneficiaries of the will.

For example, in one case, an old woman became irrationally convinced that relatives of hers had cheated her, and as a result made a will which made no provision for them. The Court examined the circumstances in great detail and decided that on the evidence before it, she was convinced that her “morbid fancies” were reality. The Court therefore refused to grant probate of the will because of lack of testamentary capacity: Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295.

A person with a psychiatric disorder may still make a will provided that it is made during a “lucid period”.

VALIDITY OF A FOREIGN WILL

If the will of the deceased was made overseas and is valid according to the law of the country where the deceased then lived, or where the deceased was at the time of making the will, it will be accepted in WA.

USE OF LEGAL JARGON

A will does not have to contain any legal jargon. All the will has to do is say it is the will of the will maker and that he or she wants the property to be distributed in a certain way upon death.

There is, however, one occasion where it is important to insert a particular clause into the will. This is the clause which covers the witnessing of the will maker’s signature. It is called the attestation clause. If there is no attestation clause in the will an affidavit is required of the two witnesses to the will that they both witnessed the will maker sign the will. Sometimes a witness may be dead or cannot be traced and it may be impossible to obtain an affidavit and a Grant of Probate.

A simple attestation clause which can be used is:
“Signed by the testator in our presence and attested by us in the presence of him and each other”.

SIGNING AND WITNESSING A WILL

The following procedure should be carefully followed whenever a will is signed; otherwise the will may be challenged or part or all of it declared invalid. The will should be signed following these instructions:

• ensure that the will maker has read and fully understands all of the provisions of the will and is satisfied that it accurately reflects his or her intentions;
• there must be two adult witnesses, preferably people known to the will maker in case they need to be traced in order to prove that the will was correctly executed. They must not be beneficiaries under the will, nor a spouse of a beneficiary, and should not be executors;
• both witnesses must be present together and both should see the will maker sign. They then should remain present while each of them witnesses the will;
• before signing the will, it should be dated;
• in the presence of the two witnesses the will maker should place his or her usual signature at the foot of each page (if there is more than one page) and at the end of the will. He or she should also sign in the margin beside any alterations;
• in the presence of the will maker the two witnesses should sign in the margin beside any alterations and place their usual signatures at the foot of each page and also on the last page underneath the will maker’s signature. On this page the witnesses should print their names and addresses;
• the copies of the will should not be signed, but the names and addresses of the witnesses and the date of execution should be noted on these copies together with a note indicating the intended location of the original will;
• no pins or paper clips should be attached to the will and no writing or other alterations should be made to it after it has been signed;
• if the will maker cannot read (e.g. because he or she is blind) then it should be read to him or her by a fourth person in the presence of both witnesses who must state in the attestation clause that they heard the will read to the will maker and were satisfied that he or she understood it; and
• if the will maker cannot write then he or she can place a mark where they would otherwise sign and the attestation clause should state that, because the will maker was unable to sign his or her name, his or her mark was made by him or her in place of a signature.

Where a will maker does not want their spouse or child to get anything under the will, it is best to include a clause to that effect in the will, along with an explanation for this decision.

WILL MADE WITH INTERPRETER

If the will maker has an insufficient understanding of English then the will can be read to him or her in their own language by a fourth person and they should then be asked to state whether it is understood before signing. The attestation clause should say the circumstances and the name of the interpreter. The following is an example of a special attestation clause where an interpreter was required to read the will to the will maker:

“This will was read to the testatrix translated into Greek by Georgio Karydis who then informed us that the testatrix had stated that she understood its contents. It was then signed by the testatrix in our presence and attested by us in the presence of her and each other.”

It may also be wise to have the interpreter swear a statutory declaration in a form similar to the following example:

STATUTORY DECLARATION

I, GEORGIO KARYDIS of 73 Price Street, Subiaco in the State of Western Australia, do solemnly and sincerely declare as follows:

I am a person proficient in both the Greek and the English languages.
I was present at the signing of the will of NORA ILIOPOULOS on the 7th day of May 2005.
Before the testatrix signed the will and in the presence of the witnesses I read it to her translated into the Greek language. I then asked her in Greek whether she understood the contents of her will and she replied that she did.
I then advised the witnesses that the testatrix had informed me that she understood the contents of her will.
She then signed the will in my presence and in the presence of the witnesses who then added their own signatures.
I make this solemn declaration by virtue of the Evidence Act 1906.
Declared at ................................................ this .................... day of .............................
two thousand and .....................................
before me ..................................................

STANDARD WILLS

Standard will forms can be obtained from large newsagents and suit most purposes. However, it is always advisable to obtain legal assistance in preparing a will. If it is not possible – in an emergency for example – then it is generally better to have some expression of the will maker’s wishes than none at all.

A will does not have to be on special paper and it can be typed or handwritten by the will maker or any other person. It is important however that the formal requirements are strictly observed. It can give rise to delay and/or expense to have to prove an informal will.

CODICIL TO A WILL

A codicil is an addition to the original will. It must follow all of the formal requirements of a validly made will and must refer to the original will. The court may, however, admit an informal codicil in the same way as an informal will.

STORING A WILL

When completed, a will should be kept in a safe place. A record should be kept of where the will is being stored. Banks, insurance companies, trustee companies, the Public Trustee and lawyers can all hold a will for a person.

DOES A LAWYER HAVE TO DRAFT A WILL?

There is no formal requirement that a lawyer must draft a will. It is a safeguard to have someone with legal knowledge draw up a will. A person can go to the Public Trustee or to private trustee companies to have a will drawn up. The Public Trustee makes no charge for this service, but upon administration of the estate extracts a charge from the proceeds of the estate.

PERSONS WHO MAY MAKE A WILL

Anyone over 18 years of age may make a will.

PERSONS WHO MAY BE EXECUTORS

If a person wants someone in particular to administer his or her estate, they should appoint that person or group of persons to be the executor(s). If no executor is named in the will, the will is still valid and an administrator will be appointed (usually a close relative of the deceased) by the Supreme Court to carry out the terms of the deceased’s will.

Lawyers who draft wills may suggest that they be appointed as the executor. You need not agree to this suggestion. Having a lawyer as executor may facilitate the administration of the estate, though it may bring greater expense to that administration.

If a person has their will made by the Public Trustee, the Public Trustee is entitled to extract

a certain percentage from the proceeds of the estate upon administration. This may be quite a large total amount with a large estate. It is a good idea to compare costs and efficiency before a person decides who to ask to administer their estate.