Making a Will
The four Acts that will most likely be encountered with wills and estates are the Wills Act 2008 (Tas) the Intestacy Act 2010 (Tas) the Testator’s Family Maintenance Act 1912 (Tas) (the ‘Testator’s Act’), and the Administration and Probate Act 1935 (Tas). The Wills Act governs the ‘making, alteration, rectification, construction and revocation of wills’. The Intestacy Act deals with intestate estates. The Testator’s Act is intended to ‘assure the family of a deceased person a certain interest in the estate of the deceased person’.
- Administrator: court authority to act as an administrator.
- Attestation Clause: An attestation clause is a clause stating that the will was executed (i.e. signed by the testator) in the presence of two witnesses.
- Beneficiary: person who receives all or part of the deceased person’s estate (there may be several beneficiaries).
- Estate: the property of the deceased person.
- Execute: to make a will valid.
- Executor/Executrix: person appointed in a will to deal with the estate.
- Grant of Probate: a court order giving the executor permission to deal with the estate.
- Intestate: having died without leaving a will.
- Letters of Administration: court authority to act as an administrator.
- Probate: a certificate indicating that a deceased’s will has been proved as valid, and can now be executed and the estate administered.
- Testate: having died and left a will.
- Testatrix/Testator: a person who has died and left a will.
What does a Will have to contain?
A will must be in writing, typed or handwritten and:
- Signed by the testator, or by another person in the presence of and under the direction of the testator. The testator does not have to sign at the end of the will (s8(2), Wills Act).
- There must be at least two other witnesses present at the time of signing, and at least two witnesses must also sign the will in the presence of the testator (but not necessarily in the presence of each other).
- The signature of the testator (or his/her proxy) must be made with the intention of executing the will (s8, Wills Act).
- The witnesses do not need to know the contents of the will, or even that it is a will that they are witnessing (s9).
The will must:
- Appoint an executor;
- Sell or transfer all property after settling debts;
- Make adequate provision for all those people for whom adequate provision should be made (such as dependent family); and
- Be dated, signed and correctly witnessed.
A will should specify that this is your final will, and any previous wills are revoked (to prevent confusion). A will is intended to deal with property only, but it can include requests for funeral arrangements and disposal of your body. Arrangements for surviving dependent minors can also be specified. An executrix/or should be named, but they are not strictly bound to follow all requests stipulated in a will. Consider if a testator requested their body to be flown by private jet to India, and dropped in to the Ganges river from an air balloon.
Prior to the enactment of the 2008 Wills Act, the previous 1840 Act required that a will contain an attestation clause. An attestation clause is a clause stating that the will was executed (i.e. signed by the testator) in the presence of two witnesses. Now, there is just the requirement for the signatures of the executor and witnesses to be on the document. However, if there are circumstances outside the ordinary, such as the testator making a mark rather than signing, or having the will read to them, then an attestation clause will often be included to make the situation clear.
Signing and Witnessing a Will
Often, a solicitor will be present at the signing and witnessing of a will. They will go through a process to ensure that the contents of the will are what the testatrix/or wants in their will. Only a person who is unable to see and attest that testator has signed a document is absolutely prohibited from acting as a witness (s11, Wills Act). Spouses, beneficiaries, and disinterested parties may witness a will, spouses and beneficiaries only where there are additional witnesses, or where the court has dispensed with that requirement.
To be valid, a will needs to be signed by the testator, and witnessed by at least two witnesses, who are not the spouse or a beneficiary of the will (s12, Wills Act). So, if there are four witnesses, one of them is the husband of the testatrix, and one of them is a beneficiary, but two are non-interested parties, then the will is valid. However, even if there are two witnesses, and both of them are beneficiaries, a court can declare that section 12 does not apply, if they are satisfied that the will was not the result of fraud, duress, or the exercise of undue influence (ss13 and 14, Wills Act).
Illiteracy, blindness or English second language
There may be circumstances in which a testator cannot read or write, or cannot read or understand English. The new Act makes no provision for illiteracy. However, it can be assumed that in such situations, the common law would apply. This means that the will can be read to the testator by an uninterested party – not a beneficiary or witness. It is to be read in the presence of the witnesses.
Three main steps for executing a Will
- Has the testator read and understood the will? Do the contents reflect the testator’s wishes?
- Are there two adult witnesses who are not the spouse of the testator or a beneficiary of the will? (ss12 and 14, Wills Act)
- Have the witnesses seen the testator sign the will? Have they signed the will as witnesses in the presence of the testator? (s8, Wills Act)
How do marriage and significant relationships affect a Will?
The Testator’s Family Maintenance Act 1912 (Tas) (the ‘Testator’s Act’) was passed to ensure that a testator’s family was provided for in the event of intestacy or a will that failed to provide for a spouse or children. The Wills Act expresses a similar intention in section 16. Marriage or the registration of a deed of relationship can affect your will. If your will was made in contemplation of the marriage or deed of relationship then the marriage or registration of relationship will not revoke your will. If the will already provides for the partner/spouse, it will not be revoked, nor will any powers given to the spouse/partner under that will.
How does divorce or revocation of a deed of relationship affect a Will?
A divorce or revocation of a deed of relationship revokes any beneficial disposition to the spouse/partner, any powers, such as the power of executor, trustee, guardian or advisory trustee; and any grant under the will made in favour the testator’s spouse (s17(1),Wills Act). This does not affect where the spouse is a trustee for beneficiaries, including the spouse’s children. The Wills Act phrases the revocation of a spouse’s interest in the will as ‘the will is to take effect as if the testator’s spouse had died before the testator’ (s17(3)).
Where to Keep a Will
Wills should be kept in a safe place. Often a solicitor will retain a will. Other options are the Public Trustee, trustee companies, insurance companies, and banks. All can hold a will for a testatrix/or. It is important to make copies of a will, in case the original is lost or destroyed. A note of the location of the original will should be made on any copies.
Does a Solicitor have to Draft a Will?
It is not necessary for a solicitor to draft a will, however it is advisable to have legal advice on the drafting of a will where there are complexities, such as children, complicated family situations, or complex financial affairs. Superannuation, the disposition of real property, the death of a beneficiary, and the rights of immediate family members even if they have been disinherited can be complex and have an impact on the validity of all or part of your will.
Who can make a Will?
Anyone can make a will, as long as they have testamentary capacity and are above the age of 18 years. This latter requirement can be dispensed with by the court.
Who can be an executor?
An executor must be over 18 years of age. It is preferable that executrixes/ors live in the same state as the testatrix/or, and that two be named, in case one executor dies or can no longer act in that capacity. Traits to consider include: trustworthiness, closeness of relationship, and similarity of age. If a person dies, and no executrix is named, the Supreme Court can appoint one, including a private trustee or the Public Trustee.
DIY Will Kits
There are numerous DIY will kits. You may have seen them on sale at the Post Office. The choice and price is varied for DIY Kits, and a simple google search will offer you many choices, as well as consumer website evaluations of different will kits. Consumer websites unanimously point out that for complex matters, legal advice is best. Complex matters include: superannuation, property division, spouses, ex-spouses, children from different relationships, beneficial charity organisations over family. If you are a single person, with only one living relative (a sibling), you live in rented accommodation, and only have a superb collection of Star Wars figurines that you wish to pass on to your sibling, you are not in a complex situation.
If, however, you have several properties some of which are joint ownership, two marriages, five children all under the age of majority to two separate spouses, and a large amount of superannuation, you are in a complex situation and need legal advice.
Page last updated 15/12/2017