Making a will
Any person (married or single) over the age of 18 and who has the mental capacity to understand what is being done should make a will. Making a valid will is the only way people can be sure that their property is distributed according to their wishes after their death. Where there is any doubt about a person’s mental capacity, it is wise to consult the person’s doctor. Executors
Any person over the age of 18 years can be appointed executor of a will. It is usual to choose family members or friends to be executors of a will and it is important to choose someone who is thorough and trustworthy. An executor is responsible for seeing that the terms of the will are carried out. Being an executor may involve any or all of the following duties: - Making funeral arrangements
- Disposing of the remains of the testator (person who has made the will)
- Applying for a certified copy of the death certificate from the Registrar of Births, Deaths and Marriages
- Locating and identifying property belonging to the testator.
The executor is also responsible for attending to all financial matters, such as funeral expenses, legal and taxation costs and any other outstanding debts. Preparing a will
There is no legal requirement that a lawyer must prepare a will, but it is recommended to employ someone with legal knowledge. The Public Trustee prepares wills free of charge if named as sole executor or co-executor. Private trustee companies prepare wills for a cost and prefer to be named as executor. All trustees charge a commission to administer an estate. The cost of administering an estate can often be much higher than the cost of making a will. All the formal requirements must be fulfilled if people wish to draw up their own wills. If this is not done, the will may be invalid and they may die intestate. Valid wills
Normally, for a will to be valid it must be in writing, be signed at the end by the testator in the presence of 2 witnesses (both present at the same time) and then signed by the witnesses in the presence of the testator.
It is legal for a will to be witnessed by a beneficiary or a beneficiary’s spouse, but it is preferable to avoid this situation, particularly if there is a possibility that the will may be contested. Changing a will
Anyone whose circumstances have changed – perhaps through marriage, the birth of children, divorce, remarriage or the death of a close relative, for example – should make a new will. Anyone who is living in a de facto relationship of any kind, especially if some common assets are held in the other partner’s name, should make sure that both partners make a will. When a will needs updating, it is best to make a new will but it can also be updated by adding a codicil to the will. A codicil is an addition, in a separate document, to an earlier will. Cancelling or revoking a will
A testator who wants to replace, or stop the operation of an existing will should be sure that the existing will is revoked or cancelled. This can be done in several ways. It is best to make a new will containing a revocation clause that states clearly that all previous wills are revoked. An example of a simple revocation clause is: ‘I revoke all former testamentary dispositions’. A later will may revoke an earlier will by implication, that is, when the terms of the later will contradict the terms of the earlier will.
A will can be revoked by tearing it up or otherwise destroying it, provided it is with the intention of revoking the will. The testator must do this or the testator can ask someone else to do it. Where a will has been revoked by means of a legal document revoking the will, destruction or marriage, a person will die intestate unless a new will is made. Wills made overseas
Generally, a will made overseas that is valid according to the law of the country where the will was made, is acceptable in South Australia even if it is not valid according to South Australian law. A will need not be in English in order to be accepted in South Australia. However, if it is not in English, it must be translated and an affidavit of translation (written statement sworn on oath) must be made, before probate (acceptance by the court of the validity of the will).
Attestation clauseA will does not need to use special words. It is very important, however, that the will is worded in clear, unambiguous language.
There is one clause that should always be inserted in a will and this is the part of the will that deals with the witnessing of the testator’s signature. An example of a simple attestation clause is: ‘Signed by the testator (testatrix) in our joint presence and by us in his (her) presence’. Where to keep a will
A will should be kept in a safe place. There should not be a duplicate of the will made, but only one original signed copy. Photocopies may be made in case the original is lost. A note should be made on the copy of where the will is kept and the executor(s) informed of its location. Banks and insurance companies hold wills, usually for a small charge. Trustee companies will usually only hold a will if they are named as an executor. Lawyers will usually hold a will if they have prepared it for a client, even if they are not named as executors. Assistance is available from the following organisations:
Law Society of SA
Referral service to solicitors who can prepare a will at low cost and do home visits.
Public Trustee
Will making and advice and estate administration. Deferred fees apply.
COTA Seniors Voice
A solicitor is available to provide free brief advice on general legal matters, simple wills and powers of attorney/guardianship. Low fees are charged for preparation of wills and other services.
Salvation Army, tel. 1800 337 082 (Free call)
Free 18-page booklet regarding will preparation, Your Will, Your Family, available upon request.
www.salvationarmy.org.au/sa www.heartfoundation.org.au
Free 23-page booklet - Guide to Wills and Bequests, available upon request.
Health Information Service 1300 362 787 Legacy Club of Adelaide Inc.,
Members can be referred to a solicitor who can provide a simple will service for a reduced fee. Returned & Services League of Australia (SA Branch) Inc. (RSL)
Members can be referred to a solicitor who can provide a simple will service for a reduced fee
This information is not intended as a substitute for legal advice. It should be used as an information guide only.
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