The Law Handbook 2024

900 Section 9: Health, wills and other legal issues affecting older people intentions. That is, that the willmaker knew, at the time of making their will, what a will was, knew who of their family or other persons would have a claim on their estate, and knew what assets and liabilities they had. The doctor’s affidavit should also state that the willmaker was not so confused by illness or medication as not to know what was happening or what they were doing. If the willmaker is paralysed or too weak to sign, the will may be signed with a mark, or some other person may sign it on behalf of and at the direction and in the presence of the willmaker (s 7(1)(a) WA 1997). The mental, not the physical, capacity of the willmaker is what is important here. Who can draw up a will? There is no formal requirement that a legal pract­ itioner must draw up a will, but if the willmaker is unsure about any proposed provision, either a solicitor, the State Trustees, a private trustee company, or a legal service should be consulted about the wording of the proposed will. A will is an important document as it should deal with every asset the testator owns, and should therefore be kept in a safe place (e.g. in a bank, with a solicitor, or in a private safe). The executor(s) or a relative should be told of the will’s whereabouts so that it can be easily located when the willmaker dies. If a will disappears in the custody of the willmaker, there is a presumption that the will has been revoked by destruction. The executor could also be given a copy of the will in a sealed envelope. It is a criminal offence to conceal a will or codicil. A person concealing or retaining a will may be liable to pay damages to any person defrauded or any people claiming under them for any loss sustained through retention or concealment (s 66 A&P Act). The Supreme Court can now amend wills that do not reflect the intention of the deceased person because of a mistake in the will caused by either a typographical error, or because the wording of the will as it is signed does not accurately reflect the true instructions of the testator as explained to the person who prepared the will (s 31 WA 1997). This sort of action must be made within six months of the date of the grant of probate of the will (s 31(2)). This is the case unless the court extends the time within which to make such an application, provided the estate has not been completely distributed at that time (s 31(3) WA 1997). Interested witnesses An ‘interested witness’ is a witness to a will who is given any property or power by the will (s 13 WA 1958). An interested witness is also the spouse or domestic partner of a witness. In this context, a domestic partner is a person who is a domestic partner of the witness at the time of witnessing. Interested witnesses also include beneficiaries not named, but in a group, such as ‘my children’. If an interested witness does witness a will, the will may still be proved, but in the case of wills signed before 20 July 1998, that witness will lose their entitlement to take a benefit under the will, except for certain limited circumstances (s 13 WA 1958). The term and definition ‘interested witness’ no longer appears in the WA 1997. An ‘interested witness’, as previously defined, may sign a will after 20 July 1998 without losing their entitlement under the will (s 11 WA 1997). However, the courts may be suspicious if a witness to a will is also a beneficiary of that will. To avoid any doubts about a person’s eligibility to inherit, no beneficiary named in a will, or the spouse, domestic partner or child of a beneficiary, should witness the will. For all wills made after 20 July 1998, a beneficiary must survive the willmaker for 30 days to inherit unless there is a specific contrary intention in the will (s 39 WA 1997). Changing a will Requirements A will remains valid until it is revoked or a later will or codicil is made. Between the time of making a will and the willmaker’s death, circumstances may change. The willmaker may sell or buy property, the beneficiaries in the original will may die, or new beneficiaries may come into consideration. Accordingly, a willmaker should review their will regularly to ensure their will is relevant and still correctly reflects their intentions. Whether circumstances change or not, the will remains in force as at the date of signing unless the will is changed in whole or in part (s 18 WA 1958). If the willmaker does not own the asset given