- The A document that sets out what a person wants to happen to their money and other property after they die. must be in writing (this includes handwriting, in ink or pencil, typewriting, printing, lithography, photography or other means of representing or reproducing words in visible form). The will can be written in any language, although to avoid problems of translation and interpretation, it is desirable that it be written in English (s 7 WA 1958; WA 1997).
- A will executed before 20 July 1998 must be signed by the willmaker at the end of the will and include the willmaker’s name, initials or mark, or a signature of another person on behalf of and in the presence of the willmaker. Another person can only sign for the willmaker if the willmaker is competent to make a will and directs the other person to sign on their behalf. Note than an attorney under an Written authority given to a person to make decisions on behalf of another person. The authority remains valid even when that person is no longer mentally competent. The power can be restricted to personal or financial matters. See also power of attorney; supportive attorney.A formal, written legal document in which one person gives another person power to make decisions or take actions for them in certain situations. See also enduring power; supportive attorney. cannot make a will for the A person whose financial affairs are controlled by an administrator because they are not capable of managing their own affairs due to disability, mental illness, injury or other incapacitating circumstances. State Trustees Limited is the administrator using that power. Wills signed after 20 July 1998 do not need be signed at the end. However, it is prudent to sign a will at that place.
- The willmaker and each A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court. to the will should sign each page of the will so that each page is identified as part of the will.
- 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. 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 Legally binding or effective. 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).
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 Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence.) – 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). Witnesses should not be a (1) Someone whose money or property is being looked after for them by someone else (called a trustee). (2) A person who is left something in a will, also sometimes called a legatee. See also trust. in the will, nor should they be married to, or a domestic partner of, people mentioned in 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 A document that presents written evidence in a court case, setting out what a witness says is true. The witness must swear that it is true and correct in front of an authorised official. This can be done on oath or by affirmation. The person in whose name the document is sworn is called the deponent. 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 The officer in charge of the administrative section of a court, which is known as the registry. See also prothonotary. of probates must be satisfied that the document 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 An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. 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 All the property a person has, including real property and personal property. It is often used to describe property belonging to someone who has died, or the property of a bankrupt. 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 More likely than not. The plaintiff in a civil case (a non-criminal case) must prove that what they are arguing is more likely to be true than false. This is called the standard of proof. See also beyond reasonable doubt. 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).
For the court to make such an order three things must be shown:
- that a document exists;
- that the document sets out the testamentary wishes of the A person who makes a will.; and
- that the deceased testator intended that document, without anything more, to be their last will.
All signatures should be made using the same pen.
A will 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 Words in a document that say a witness was there when the document was signed, and that they saw another person sign that document. The witness signs their name next to 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 Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. 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 will’s actual wording. 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. The law relating to the construing or interpretation of wills can be technical. Great care should be exercised as to how a will is drawn up. If possible, professional help should be sought.