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 Wills Act 1997 (Vic) (‘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 Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic)).
Any person making a will must have the mental capacity to know what they are doing (see ‘Wills and testamentary capacity’ in ‘Capacity and consent‘ 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 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 intentions. That is, that the willmaker knew, at the time of making the 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 practitioner 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 Administration and Probate Act 1958 (Vic)).
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).
An ‘interested witness’ is a witness to a will who is given any property or power by the will.
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 Wills Act 1958 (Vic)). 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 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).