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Wills

The law concerning wills is contained in the Wills Act 1936 (SA).

Many of the legal terms used in this topic are highlighted and explained in our list of Legal Terms.

Some of the terms used include testator, executor and administrator. A testator is a person who has made a will. An executor is the person who is appointed in a will to deal with an estate and an administrator is the person appointed by the court to deal with the estate of a person who dies without having made a valid will.

Making a will

Making a valid will is the only way people can be sure that their property will be distributed according to their wishes. Even if the statutory order (see If there is no will) exactly describes the way a person wants their property distributed, the estate will usually be dealt with more quickly and cheaply if there is a will.

Who can make a will?

In making a will, a person must have the testamentary capacity (mental capacity) to know what he or she is doing. They must know that, by their actions, they are making a will which will distribute their property after death. A court or tribunal may limit a person's will making capacity - for example, where a protection order is made under the Aged and Infirm Persons Property Act 1940 (SA) or where directions are made in relation to a protected person under the Guardianship and Administration Act 1993 (SA) [s 56].

Where there is any doubt about a person's mental capacity great care must be taken when making a will as it may be subject to challenge. It is always wise in such a case to have the will prepared professionally, and to have it witnessed by the person's doctor who could testify later as to the person's mental capacity.

Anyone over 18 years, with the required mental capacity, can make a will in South Australia [Wills Act 1936 (SA) s 5(1)]. People under 18 years can make a will if they are or have been married or with the permission of the Supreme Court. The Supreme Court may also authorise a will or an alteration to be made where a person lacks testamentary capacity (mental capacity) [Wills Act 1936 (SA) s 7].

Should a lawyer prepare the will?

There is no legal requirement that a lawyer must prepare a will. However, it is best to have someone with legal knowledge, such as a lawyer, the Public Trustee or a private trustee company, to make a will. If all the formal requirements of a will are not met, a will may not be valid and/or more expense may be involved in having a court decide what the testator meant when they wrote the will.

Some trustee companies may make wills free of charge while others charge a fee. All trustees may, if they wish, charge a commission to administer the estate if appointed executor. A lawyer's charges will depend on how long it takes to prepare the will. The more complex a will is, the more expensive it will be. When choosing whether to use a lawyer, who charges at the time of making the will, or a trustee company which may have no charge for making the will, but charge a commission for the administration of the estate, it is worth being aware of the real cost of the commission method.

Where to keep a will?

A will should be kept in a safe place. It is wise to make a photocopy of the will as the original may become lost. A note should be made on the copy of where the will is kept. It is wise to let the executor of the will know where it is located. Banks and insurance companies hold wills, usually for a small charge. Trustee companies will usually only hold a will if they are named as an executor. Lawyers will usually hold a will if they have prepared it for a client, even if they are not named as executors.

Wills Register

The Law Society of South Australia provides a secure centralised register of the location of South Australian wills. This service is available for legal practitioners to register wills and to search for missing wills. Although practitioners are encouraged to register their clients’ wills participation in the register is voluntary.

From 1 December 2019, legal practitioners may publish the name and date of birth, and the date of the will of their client, without breaching confidentiality, in the following situations:

  • The will was made before 1 December 2019; and
  • The legal practitioner has been unable to contact the client despite reasonable attempts to do so to obtain consent for publication

See Legal Practitioners Act 1981 (SA) s 95E

Valid wills

For a will to be valid it must [Wills Act 1936 (SA) s 8]:

  • be in writing
  • be signed at the end by the testator or by some other person in the presence, and at the direction, of the testator
  • appear from the will that the testator intended to give effect to the will by signing it
  • be signed by the testator or the signature must be acknowledged by the testator in the presence of two or more witnesses present at the same time
  • then signed by witnesses who sign their names as witnesses to the will in the presence of the testator but not necessarily in the presence of each other.

If these requirements are not met, the estate may be dealt with as if there were no will (see If there is no will), unless the court orders otherwise. These requirements do not apply to privileged testators, (that is, members of the defence forces in actual military service, or sailors at sea). Privileged testators may make nuncupative (oral) instead of written wills [Wills Act 1936 (SA) s 11].

Waiving Formalities

If a will fails to meet all the above requirements, the court may still consider the will to be valid. If the court is satisfied that the document expresses the testamentary intentions of the deceased, it can admit that document to probate as a will of the deceased person [Wills Act 1936 (SA) s 12(2)]. An application will need to be made to the court. Applications may be quite expensive and not all are successful, so it is important that all the formal requirements are met when making a will.

If a probate action has not already been commenced, an application to waive formalities is made to the court by way of a summons to the Registrar using Form 34A (now CourtSA Originating Application Form) under the Supreme Court Probate Rules 2015 (SA). The summons must be supported by an affidavit setting out the facts upon which the applicant relies. In addition, it must include the written consents to the application of all persons (not under a disability) who may be prejudiced by the admission of the document to proof [r 64.01].

Foreign Wills

Generally, a will made overseas that is valid according to the law of the country where the will was made, will be accepted in South Australia, even if it is not valid according to South Australian law. In other words, if a migrant's will is valid in the migrant's old country, it will be granted probate in South Australia [Wills Act 1936 (SA) ss 13,14].

A will need not to be in English in order to be accepted in South Australia. However, if it is not in English, it must be translated, and an affidavit of translation must be made, before probate will be granted. It is simpler if the will is written in English and translated to the testator.

Signing and witnessing a will

While a beneficiary or a beneficiary's spouse may witness a will in South Australia [Wills Act 1936 (SA) s 17], it is preferable to avoid this situation, particularly if the will may be contested.

A will is validly signed and witnessed if the following steps are taken:

  • The testator must have read, understood and approved of everything in the will
  • Before the will is signed, the testator and the witnesses should initial any alterations to the will [see Wills Act 1936 (SA) s 24 and Supreme Court Probate Rules 2015 (SA) r 22]. See also 'Alterations before signing' below.
  • Before it is signed, the will should be dated as signed and witnessed on X date, either at the beginning or end. If the will is not dated or there is some doubt about the date on which the will was executed, an affidavit of one of the attesting witnesses in proof of the actual date must be filed and failing that, other evidence that shows that it is the latest or only will of the testator [Supreme Court Probate Rules 2015 (SA) r 21].
  • In the presence of both witnesses, the testator should sign in pen at the end of the will and preferably, but not necessarily, at the foot of each (numbered) page.
  • In the presence of the testator, the witnesses should sign at the end of the will under the signature of the testator, using the same pen as the testator.
  • The will of a testator who cannot read should be read to the testator by one of the witnesses in the presence of the other witness and the witnesses must state that they heard the will read and were satisfied that the testator understood and approved of it, see Attestation clause.
  • A testator who cannot write because of illiteracy or physical disability can place a mark (normally a cross) where she or he would normally sign and the witnesses must state that the mark was made by the testator, see Attestation clause.
  • The will of a testator who does not understand the English language should be read to the testator in her or his language by one of the witnesses in the presence of the other witness and the witnesses must state in the that the testator understood and approved of it, see Attestation clause.
  • Wills should not be executed in duplicate. There should only be one original, signed copy of the will. Photocopies may be made. It is a good idea to note on the photocopies where the original is kept.
  • No writing or alteration should be made on a will after it is signed.
  • No pins or paper clips should be attached to a will. If it appears to the Registrar from any mark or hole in the will that another document may have been annexed or attached, it must be accounted for and/or produced to the Registrar's satisfaction [see Supreme Court Probate Rules 2015 (SA) r 23].

Alterations before signing

Wills can be altered before signing, but the testator, and both witnesses, must sign or initial in the margin or near the alteration. If this is not done, the court will assume that the alteration was made after the will was signed and the alteration will not be effective unless the court waives the formalities, see Waiving formalities. Once a will has been signed there can be no alteration, either by crossing out or writing in new clauses, unless the new clauses are executed in the same manner as a will, see Updating a will.

Attestation clause

A will does not need to use special words. All it has to say is that it is the will of the testator, who wants her or his property to be distributed in a certain way. It is most important that the will be worded in clear, unambiguous language.

However, there is one clause that should always be inserted in a will. This is the attestation clause (the part of the will that deals with the witnessing of the testator's signature). If there is no attestation clause, an affidavit made by at least one witness, giving details of how the will was signed and witnessed, will be needed when the application for probate is made after the testator's death. If no witness is conveniently available, the affidavit may be by someone else who was present when the will was executed [Supreme Court Probate Rules 2015 (SA) r 18]. Sometimes the witnesses and those who were present when the will was executed are dead or have moved, and so the signature cannot be proved. In either case, there will be great difficulties in obtaining the grant of probate if there is no attestation clause.

An example of a standard attestation clause:

The testator signed in the presence of both of us being present at the same time, and we attested his/her signature in the presence of him/her and of each other.

Any will which is made for a testator who is blind, unable to write (because of illiteracy or some other disability), or unable to understand English, needs to be dealt with most carefully. Professional assistance is recommended in these cases.

These may be dealt with in the following ways:

An example of attestation clause used when a will is read to a testator who is blind

This will having been first read over to the testator who is blind by me the undersigned (name) in the presence of me the undersigned (name) when the testator appeared thoroughly to understand it and to approve of its contents was signed by the testator as his/her last will and testament in our joint presence and by us in his/her presence.

An example of an attestation clause used when a will is read to a testator who cannot write

IN WITNESS whereof I have hereunto set my hand this day of 20..

HIS/HER A X B MARK

SIGNED by the above-named AB by making his/her mark as and for his/her last will and testament after it had been read over to him/her and he/she appeared thoroughly to understand it and to approve of its contents in our joint presence and by us in his/her presence.

(Note that if the person cannot write because of physical incapacity, then the witness should indicate this with appropriate detail on the will. It is best to get professional assistance in these cases.)

An example of an attestation clause used when a will is translated by a witness to a testator who cannot read or understand English

IN WITNESS whereof I have hereunto set my hand this day of 20..

........................................................................................................................

SIGNED by the testator as and for his/her last will and testament after it had been read over to him/her in English and (state language) by me the undersigned (name) in the presence of me the undersigned (name) when the testator appeared thoroughly to understand it and to approve of its contents in our joint presence and by us in his/her presence.

Will clauses

It is best to get legal help in making a will. Clauses within a will may deal with a range of things including:

  • the revocation of an earlier will
  • who is appointed as an executor
  • to whom the estate is given
  • if any cash legacies will go to particular beneficiaries
  • what will happen with the remainder of an estate after cash legacies and other debts and expenses are paid out
  • what will happen if a spouse or other beneficiary dies before the testator
  • the disposal of the body of the testator
  • the care of minor children, and
  • the signing and witnessing of the will

The clauses included in a will depend on the circumstances and the wishes of the testator.

Disposal of the body

Subject to the provisions of the Transplantation and Anatomy Act 1983 (SA) , the executor has responsibility for the disposal of the deceased's body, but a testator may have specific wishes in this regard, for example, to be cremated and have their ashes spread over the sea from a particular place. These specific wishes can be stated by the testator in their will.

Care of children

Normally, both parents are jointly responsible for the care of their children under 18, unless a court order changes parental responsibility. This means that if one parent dies, the surviving parent would assume sole responsibility for the child(ren). There is no need for any direction in the will.

Where a court makes a parenting order, it stays in force until the court changes it, or the child or guardian(s) dies.

A parent with sole responsibility for the long term care, welfare and development of a child (because of a Family Court order, or because the other parent is not named on the birth certificate, or has died) can state in their will who will care for their minor children after their death.

Whether or not there is a direction in the will, if the carer parent dies and the family cannot agree about who should care for the child, an application to the Family Law Courts may be necessary to determine who should care for the child. For more information, see Arrangements for children.

Both spouses dying together

It sometimes happens that both spouses die at the same time or within a short time of each other. When spouses die at the same time, under South Australian law there is no presumption (that is, it is not taken as a fact) that the older died first. Where there is no proof of who died first, it may be necessary (for example, where the deceased were joint tenants) to apply to the court for guidance as to the distribution of the estate.

Where a person dies intestate the spouse must survive the deceased by 28 days before he or she can take a share in the estate [Administration and Probate Act 1919 (SA) s 72E]

A testator can cover the possibility of both spouses dying together or within a short time of one another, by providing for this in their will. They can say that how they distribute their estate provided their spouse survives them by the required time, and how they distribute their estate differently in the event that their spouse fails to survive them by the required time.

Changing a will

A will remains in force until the testator formally changes or revokes it [Wills Act 1936 (SA) s 21]. The fact that circumstances have altered does not mean that the will stops operating or that it changes to meet the altered circumstances. The only exceptions are when a person commences or ends a registered relationship or marriage.

Registered relationships, marriage and separation

The commencement of a registered relationship under the Relationships Register Act 2016 (SA) or marriage under the Marriage Act 1961 (Cth) automatically revoke a will unless the will was made in contemplation of the registered relationship or marriage and this was stated in the will. In contemplation of the registered relationship/marriage means that the testator was planning to commence the registered relationship or marry at the time of making the will, and the will is made with this in mind [Wills Act 1936 (SA) s 20].

The end of a registered relationship or marriage revokes any bequest to the former spouse or partner or appointment of the former spouse or partner as executor unless it is clear from the will that the end of the registered relationship or marriage is to have no effect [s 20A]. The Act defines when a registered relationship or marriage is taken to have ended.

It is wise to seek legal advice about a will after commencing a registered relationship, marriage or separation.

Updating a will

A will that has been signed cannot be altered, either by crossing out or writing in new clauses, unless the new clauses are executed in the same manner as a will [see Wills Act 1936 (SA) s 24]. It is best to make a new will, but it can also be done by adding a codicil to the will. A codicil is an addition, in a separate document, to an earlier will. A codicil may confirm some of the contents of an earlier will and alter or add additional clauses to the will.

A codicil has to meet the formal requirements of a will (see Valid wills) and should refer to the original will and the date it was made. It need not be witnessed by the same people who witnessed the original will, but it must have a properly signed attestation clause.

Cancelling a will

A testator who wants to replace, or stop the operation of, an existing will should be sure that the existing will is revoked. A later will may revoke an earlier will by implication, that is, when the terms of the later will contradict the terms of the earlier will [see Wills Act 1936 (SA) s 22(b)]. However, this can lead to uncertainty, and so the inclusion of a revocation clause is preferable [s 22(c)].

A will can be revoked by tearing it up or otherwise destroying it provided it is with the intention of revoking the will. This must be done by the testator or the testator can ask someone else to do it [s 22 (d)].

Where a will has been revoked by means of:

  • a legal document revoking the will [s 22(b) and (c)]
  • destruction [s 22(d)]
  • registered relationship or marriage [s 22(a) and (ab)]

a person will die intestate unless a new will is made.

Re-starting a will

When a testator destroys a will with the intention of revoking it, that person does not have a will. The destruction does not mean another earlier will becomes the valid will of that person. An earlier will can become the valid will if the testator re-executes it, following the formal requirements of making a valid will [Wills Act 1936 (SA) s 25]. This is known as republishing a will.

Contesting a will

There are several ways a person may contest a will, namely:

In each case legal advice is needed.

Deed of family arrangement

If all beneficiaries under a will are adults, have full mental capacity and agree, a will may be altered after the testator's death by a deed of family arrangement.

A deed of family arrangement is a document which outlines an agreement between parties with an interest in an inheritance - this can include beneficiaries, executors, trustees and even creditors of the estate. It is used either where all parties are agreed that they would like to alter the terms of the will, for whatever reason, or where there is a disagreement over a will and the disputing parties are able to reach a compromise without going to court.

A deed of family arrangement can have stamp duty and capital gains tax implications. Professional advice is needed on this issue.

A deed of family arrangement cannot be used:

In any of the above instances a court order will be necessary to make the deed of family arrangement enforceable at law.

Invalid wills

When arguing a will is invalid, a person contends that the will presented for the grant of probate was not intended by the deceased to be her or his last will and testament.

This may be because:

  • it was not the last will made by the deceased
  • the deceased lacked the mental capacity to make a will
  • the deceased did not understand the will (for example, the testator did not understand English and was asked to sign it)
  • someone else used undue influence or pressure to force the testator to make the will
  • the signature on the will has been forged or there has been some other fraud
  • the will presented to the court had been revoked.

If a disputed will is eventually approved by the court, a grant in solemn form is made.

The court, not the Probate Registry, interprets wills. The executor, or a party interested in the estate, may apply to the court to have it decide what the deceased meant by the will. For example, the deceased may have left something to my grandson George and there may be more than one grandson named George.

The Wills Act 1936 (SA) was amended in 1994 to give the court the power to rectify a will [s 25AA]. If a court believes that a will does not accurately reflect the correct intentions of a deceased person the court may order that the will be rectified to give proper expression to those intentions.

An application for rectification of a will must be made within 6 months after the grant of probate [s 25AA(2)]. If an application is not made within this time the court has only limited power to go behind the actual words used in a will.

The court can only interpret the words in the context in which they appear, according to their usual meaning. No outside evidence may be used in interpreting the will. For example, if the will says bank account, the court cannot accept evidence that the deceased meant building society account. The only exception to this is when the words in the will do not make sense in the circumstances. The words bank account have a clear meaning, unless the deceased had no bank accounts. In these circumstances, the court may refer to evidence that the deceased always, for example, called the building society the 'bank'.

Unless the court is able to exercise its power to rectify a will [Wills Act 1936 (SA) s 25AA] the court will not accept evidence about the direct intention of the deceased. A statement by the deceased to a beneficiary that she or he would be receiving a certain gift would not be used by the court in interpreting the will.

Inadequate provision

A general principle of law is the freedom of testation, that is, you can give your estate to whomever you wish. This can be unfair and unjust, for example, when a spouse or child of the deceased suffers hardship as a result of the deceased's whims, such as giving money to a particular organisation or ignoring the needs of a dependant.

To amend this situation, the Inheritance (Family Provision) Act 1972 (SA) , was passed. Briefly, the object of this Act is to allow the court to award to an eligible applicant part of the deceased's estate, even though the deceased had left nothing, or very little, to that person in the will. The following relatives can apply for a re-allocation of the deceased's estate [s 6]:

  • the spouse of the deceased person
  • a person who has been divorced from the deceased person
  • the domestic partner of the deceased person
  • a child of the deceased person
  • a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his or her death
  • a child of the child of the deceased person
  • a parent of the deceased person who satisfies the court that he or she cared for, or contributed to the maintenance of, the deceased person during his or her lifetime
  • a brother or sister of the deceased person who satisfies the court that he or she cared for, or contributed to the maintenance of, the deceased person during his or her lifetime.

A 'domestic partner' is someone who was in a registered relationship with the deceased under the Relationships Register Act 2016 (SA) at the date of death or some earlier date or someone declared to have been a domestic partner of the deceased under the Family Relationships Act 1975 (SA) at the date of death or some earlier date. For more information, see What is a domestic partnership?

An application must be made within 6 months after the grant of probate or letters of administration, although the court may give an extension of time if the estate has not been completely administered [see Inheritance (Family Provision) Act 1972 (SA) s 8].

Not all people entitled to apply under the Act will obtain a re-allocation order. The test applied by the court is whether the deceased failed to provide adequately for the applicant's proper maintenance, education or advancement in life.

A challenge will not succeed on the ground that the will was unfair or unjust in its distribution, when in fact the will does provide adequately for the applicant's maintenance. For example, where a man leaves his large business to a football club and his house and a significant sum of money to his wife, the wife could not easily complain that she had not received adequate provision, even though it is perhaps unjust that a football club should receive more than her.

Over the years, courts have created certain guidelines as to what is adequate provision for proper maintenance. The main standard is that the court must put itself in the position of the deceased and consider the case as a wise and just, rather than a fond and foolish, spouse or parent. Some of the important considerations are:

  • the size of the estate
  • the age, health and financial position of the applicant. It is necessary for the applicant to prove that she or he is in financial need, or that there is some other special reason why provision should be made for her or him. For example, an applicant in a good financial position might still succeed if it is shown that the deceased was able to build her or his estate through the substantial efforts of the applicant.
  • the closeness of the relationship between the applicant and the deceased.

A claim under the Inheritance (Family Provision) Act 1972 (SA) may also proceed where the deceased did not make a will and their estate is distributed according to the statutory order, see If there is no will.

Getting a copy of a will

A common problem for people can be finding out what a will says. Unless they have seen a copy of the will or are the executor they will not have any knowledge about the will’s contents.

Even when a person is named as a beneficiary under a will, the solicitor who prepared the will is under no obligation to confirm whether they have been included in the testator’s will. In the process of administering the estate the executor will notify the beneficiaries, but this does not have to happen until after the will has been granted probate by the court.

The will is lodged with the court on an application for probate. Once a grant of probate has been made, it becomes a matter of public record. A will lodged with the court on an application for probate is not a public record unless and until a grant of probate has been made. This process can take months rather than weeks so a person may have to wait some time until they can get a copy.

Once probate has been granted, members of the public can obtain a copy of any will that has been lodged with the Probate Registry, online through CourtSA (after creating an account and conducting a search). Wills lodged after 1980 are kept electronically but those lodge prior to 1980 are not and will require a manual search. The Probate Registry transitioned to the electronic filing service called CourtSA in late 2018.

If unsure whether or not a will has been lodged and granted probate, a person may need to periodically conduct a search.

Are there any time limits for making an application to contest a will?

An application to contest a will under the Inheritance (Family Provision) Act 1972 (SA) must be made within 6 months of a grant of probate [s 8].

An application to contest a will under the Wills Act 1936 (SA) on the basis of rectification must be made within 6 months of the grant of probate [s 25AA(2)].

    Making a will  :  Last Revised: Tue Jan 7th 2020
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.