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].

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.

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:

[Legal Practitioners Act 1981 (SA) s 95E]

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.

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.

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.

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.

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.

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.

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 person will die intestate unless a new will is made.

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.

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.

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:

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.

A general principle of law is the freedom of testation, that is, you can give your estate to whomever you wish. This can be considered 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]:

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, family member. Some of the important considerations are:

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.