Who can make a will?
Any person over the age of 18 years may make a A document that sets out what a person wants to happen to their money and other property after they die.. A In Victoria, a child or young person under 18. See also infant. may make a will if 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. 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 Justice Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. A change made to a legal document or Act of parliament. (Succession and Surrogacy) A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 2014 (Vic)).
Any person making a will must have the mental The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. to know what they are doing (see ‘Wills and testamentary capacity’ in Chapter 8.1: Understanding disability and the law).
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 treating doctor should 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. stating that the willmaker had sufficient understanding of the circumstances to be able to carry out their intentions (i.e. that the willmaker was not so confused by illness or medication as not to know what was happening).
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 A legally proper instruction by one person (or body) to another, so that the person is bound to take action, or make a decision, as instructed. Compare dictation. 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 practitioner must draw up a will, but if the willmaker is unsure about any proposed provision, either a A legal practitioner (lawyer) who sees clients and opens files to deal with their legal matters but usually does not appear in court. See also barrister., the State Trustees, a private trustee company, or a 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 consulted about the wording of the proposed will.
A will is an important document as it should deal with every asset the A person who makes a will. 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 Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds. of the willmaker, there is a presumption that the will has been revoked by destruction. The The person named in a will as the one who must ensure that the deceased person’s intentions, as stated in the will, are carried out. could also be given a copy of the will in a sealed envelope.
It is a criminal A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). to conceal a will or codicil. A person concealing or retaining a will may be liable to pay A court order for money to be paid to someone to compensate them for a loss suffered as a result of a civil wrong or breach of contract. For example, a person who caused a serious permanent injury to another person can be ordered by the court to pay damages that compensate the injured person for their loss of income from being unable to work. See also aggravated damages; compensatory damages; general damages; liquidated damages; nominal damages; special 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 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. has not been completely distributed at that time (s 31(3) WA 1997).
An ‘interested witness’ is a 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 a will who is given any property or power by the will. An (1) In any legal proceeding, a person who gives evidence of matters before the court but has an interest in the outcome, so may have less credibility than an independent witness. (2) A witness to a will or other document who has an interest in the outcome. For example, a spouse who is given property or power under the terms of the will, and also signs it as a 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 the entitlement to take a benefit under the will, except for certain limited circumstances (s 13 WA 1958). An interested witness 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 (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. 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).