The Law Handbook 2024

Chapter 9.3: Wills 899 3 that the deceased testator intended that document, without anything more, to be their last will. Formal language Awill can be made using formal or informal language; no legal jargon need be used. The important thing is that the willmaker’s wishes are clearly expressed. Essentially, it must state that it is the will of the willmaker, and that upon death the property owned by the willmaker is to be dealt with according to clear directions contained in the will. It is, however, highly desirable to use a standard phrase identifying the willmaker’s and witnesses’ signatures. This is called the attestation clause. It is usually placed at the foot of the will, beside the space allowed for the signatures of the willmaker and the witnesses. The following is an example of an attestation clause: ‘Signed by the willmaker in the presence of us both (both of us being present at the same time).’ If this clause, or a clause having the same effect, is not used, a sworn document is required of the two witnesses as to their attestation, when the will is submitted for probate. If one or both witnesses die before the willmaker, or cannot be found after proper enquiry, the will may still be valid if there is evidence from other people present at the time of signing the will, or evidence as to the identification of handwriting of the witnesses and the testator. The courts, in deciding a will’s meaning, first look at the actual wording of the document. The courts consider the meaning of the words as they are commonly understood in the community, not what the willmaker might have subjectively thought a word or expression to mean. If a willmaker is not using professional legal help, having another person read over the will may help to ensure that the meaning of the will is clear legally. The law relating to construing or interpreting wills can be not only extremely technical but can also involve large legal fees if a court application is necessary. Great care should be exercised as to how a will is drawn up. If possible, professional help should be sought. Storage of a will A will is an extremely important document. It should be kept in a secure place, and the executor appointed under the will told where it is. If the original of a will is lost in the custody of the willmaker, there is a rebuttable presumption that it is revoked. Therefore, wills should be kept in safe custody with a solicitor, trustee company, accountant or any other institution that will hold documents such as wills in safe custody. If the willmaker wishes to keep the executed will, it should be stored with the willmaker’s other legal documents. The Probate Office (see ‘Contacts’ at the end of this chapter) accepts wills for safekeeping under section 5A of the A&P Act. To store a will with the Probate Office, the will must first be registered with the Probate Office using the Supreme Court’s RedCrest electronic filing system (available at www. redcrest.com.au) . The fee for storing a will with the Probate Office is $25.40 and the fee for delivery of a will from storage with the Probate Office is $42.90 (from 1 July 2023). The parties involved in making a will Who can make a will? Any person over the age of 18 years may make a will. A minor may make a will if the court authorises that minor to make a specific will (s 20 WA 1997). A mentally incapacitated person or a very young child can also have a will made for them by the Supreme Court, if the court (on application by a person acting on behalf of the incapable person) makes an order that a specific will as set out in the court’s order be made for the incapable person or young person (ss 21–24, 25, 30 WA 1997, as amended by s 21A–21D of WA 1997 inserted by section 28 of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic)). Any person making a will must have the mental capacity to know what they are doing. The will must be made of the person’s own volition without pressure from anyone. The willmaker must also know and understand the effect of the will. If the willmaker’s first language is not English, the will should be translated to the willmaker’s first language before they sign it. Where a person is very ill or old and wants to make or change a will, if possible, the willmaker’s treating doctor should swear an affidavit stating that the willmaker has sufficient understanding of their circumstances to be able to carry out their