The Law Handbook 2024

898 Section 9: Health, wills and other legal issues affecting older people 3 The willmaker and each witness to the will should sign each page of the will so that each page is identified as part of the will. 4 The signature and any initials of the willmaker must be witnessed by two witnesses. The witnesses must sign after the willmaker has signed. One of the witnesses may also be the person who signed for the willmaker, or who helped the willmaker sign. For wills made before 20 July 1998, both witnesses must be present together at the time of signing the will by the willmaker. Where wills are signed after 20 July 1998, the witnesses must be present when the willmaker signs, but they need not sign their names in the presence of the other witness. To avoid confusion, it is advisable for witnesses’ signatures to appear immediately below that of the willmaker. If one or more of the formalities are not complied with, the person could be regarded as having died without a valid will. The witnesses need not know that the signature they are witnessing is a signature to the will of the willmaker (s 8 WA 1997). Each witness to the will should write their full name and address under their signature so they can be located more easily after the willmaker dies. NOTE All signatures should be made using the same pen. Amendments to the A&P Act were introduced by the Justice Legislation Amendment (System Enhancements and other Matters) Act 2021 (Vic) in 2021 to enable remote execution and revocation of wills and codicils during the COVID-19 pandemic. Affected sections are sections 7(2), 7(5), 7(6) and 7(7) regarding executing a will and sections 8B, 8C and 8D which define which will is ‘the will’ and procedures for recording remote execution. Section 12(3) covers remote revocation pursuant to section (2)(e), and section 16(5) covers remote revocation of a codicil. Section 19(2) excludes international wills from remote execution and section 50A enables amendment of regulations to cover remote execution. Additionally, section 57 ensures the validity of wills executed remotely before the enactment of the Justice Legislation Amendment (System Enhancements and other Matters) 2021 (Vic) relying on the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 . If the will is longer than one page, all the separate pages should be joined (so that nothing is lost). No other document or piece of paper should be attached to the will. If professional help is not taken, will forms – available for sale from newsagents and some legal centres (e.g. Fitzroy Legal Service) – should be used where possible. Witnessing the will is known as ‘attestation’ (s 7 WA 1958; ss 7, 10 WA 1997) (see ‘Formal language’, below). Witnesses do not need to know that they are witnessing a will when they sign (s 8 WA 1997). Section 11 now permits beneficiaries in the will, or married to or a domestic partner of people mentioned in the will to witness the will (see ‘Interested witnesses’, below). Blind people cannot witness a will (s 10 WA 1997). The will should be dated at the time of signing. Where no date appears, the witnesses must swear an affidavit as to the date on which it was signed. The will is effective from the date of the willmaker’s death, not from the date of signing. Where there is more than one will in existence, the registrar of probates must be satisfied that the docu­ ment produced is the last valid will of the willmaker. The WA 1997 (s 9) provides that for deaths after 20 July 1998, application can be made to the court to validate a document that the deceased person intended as a will but was not signed by the willmaker in the presence of sufficient witnesses, or in some cases, not at all. An oral intention to leave an estate in a particular way is not covered by this provision, which requires that an incorrectly executed document be in existence. The applicant must prove on the balance of probabilities that the deceased intended the document to be the last will, but remember that probating and validating a will as a public document requires clear and definite proof that the informal document was intended without anything more to be the last will of the willmaker. The Supreme Court has the power under section 9 of the WA 1997 to admit to probate documents that are not executed in accordance with the formal requirements for the execution of wills (as set out in section 7 of the WA 1997). Rules 2.08 and 2.09 of the Administration and Probate Rules set out the procedure for applying to the court to validate an informal will. For the court to make such an order three things must be shown: 1 that a document exists; 2 that the document sets out the testamentary wishes of the testator; and