Making a Will

What happens to things you own (your assets) when you die?  You can tell people what you want done with your assets when you die.  You do this by making a will.  In your will you appoint an ‘Executor’.  The executor follows the instructions in your will and hands over your property to the people you have given it to in your will.  The Wills Act 2008 tells us how you can make a valid will.  The Administration and Probate Act 1935 tells executors what they must do to deal with your assets.

The word for your assets in your will is ‘estate’.  So everything you own when you die is your ‘estate’.  The person who makes a will is called the ‘testator’.  When the testator dies, the will is activated and works on everything the testator owned when they died.

Sometimes people die without making a will.  When that happens we say they have died ‘intestate’ and there is a statute that gives instructions about what happens then (the Intestacy Act 2010) and who gets your estate.  The name of the person who deals with your estate changes – they are an Administrator, not an executor.  It’s just a name change, they still do the same things as an executor.

One more thing – there’s an Act that makes sure that people who depend on you (like your children) cannot be left out from being given some of your estate – in other words, if you had responsibility for them while you were alive you cannot ignore them in your will.  That Act is the Testator’s Family Maintenance Act 1912.  A Court will have to decide whether the person claiming some of your estate has the right to get anything.

How do you make a will?

Well, you have to be at least 18 years old.  But if you aren’t 18 yet and there are special circumstances, you can go to Court (the Supreme Court of Tasmania) and it can authorise you to make or change a will.  (See sections 7 and 20 of the Wills Act 2008.)

What about the will itself?  With wills we want to try to make sure there is no fraud – not least because the one person who could tell us anything – the testator – is dead.  So we have some very strict rules about signing a will.  This is called ‘executing’ a will.

First off, normally the will must be in writing in some form – handwritten or typed (or even photographed, printed, or in code if there is someone who can read the code, or even a text in some situations).  And it really doesn’t matter what it’s written on, so long as it can be read.  Then, for the actual signing of the will:

• There must be at least three people present.  One must be the testator, who signs the will, and the other two people – the witnesses – must watch the testator sign. They must all be together for this.
• If there is a problem for the testator in signing a will (perhaps they are disabled, or too weak to sign), then they can authorise another person to sign the will for them under their direction (this can be done verbally).
• The testator doesn’t have to sign at the bottom of the will after it is all finished, but it is the best way to execute the will.  They could sign anywhere in theory, so long as it is all part of the one transaction.  But signing at the end of the will is by far the best place to put their signature.
• Then the witnesses must sign the will in the presence of the testator.  They don’t have to sign while the other witness is there, but they must sign in front of the testator.  (For example, two witnesses watch the testator sign, then one goes out to make a cup of tea, and the other witness signs, in front of the testator, while they are out of the room, and then leaves.  The first witness comes back with the tea, and signs in front of the testator.  That is a valid signing.)
• The witnesses don’t need to know what the will says, or even that it is a will.  They are just witnessing the testator’s signature.
• It’s quite common, but it’s not a requirement, that the witnesses sign what is called an ‘attestation clause’ under the testator’s signature.  All this is is a piece of writing saying that the testator signed the will in their presence together.  The will is still valid if it is not there.  It’s a good idea to have it there, though, especially if there are unusual circumstances about the signing – like, for example, the testator making a mark instead of signing the will.  And, if it’s there, a court will presume the will has been properly executed.
• Finally, the testator must be signing the will with the intention of making a will.  
• If the execution of the will goes horribly wrong: a court does have the power to dispense with the requirements of execution (s 10 Wills Act 2008) – if it is satisfied beyond reasonable doubt that the testator intended the document to be their will.  But this will mean an expensive application to the Supreme Court, and it’s really better to get the execution right rather than have to do this.

You can find these rules in sections 8, 9 and 10 of the Wills Act 2008.

There are some things you have to do in your will – the rest is up to you. 

So, you have to:

• Say who your executor is going to be
• Say that this is your last will and that it overrides any previous wills you have made (you would say “I revoke any previous wills I have made”)
• Make sure that you say who is going to get your estate after all your debts are paid – you need to dispose of all of it
• Make sure that if you have people dependent on you when you die that you give them an appropriate amount of your estate
• Have the will properly signed by you and witnessed by your witnesses (see above).  You don’t actually have to date your will, but it is a very very good idea to date it, so that people can be sure it’s your last will and they know that any previous wills are now invalid.  Usually the testator and the witnesses will sign each page of the will at the bottom to show that all the pages are one document (and nobody can slip extra pages in once the testator dies).  
• If you like, you can request what you would like in the way of a funeral and disposal of your body – an executor doesn’t have to do everything you request, but if it is sensible then they probably will follow what you want.  They do have to do everything you want done with your property, but anything more is really just a set of requests.

Who can witness a will?

Who can be a witness to a will? Pretty much anyone can witness a will – but there is one person who can never be a witness to a will – a blind person, because they cannot see the testator sign the will and attest to the signing, and a witness must have seen the testator sign (see s. 11 Wills Act 2008).

However, sometimes people who have been given a gift in the will sign as witnesses to the will.  If they do, it won’t make the will invalid, but it will stop them getting their gift.  They are called ‘interested witnesses’.  If there is a gift to their wife or husband, though, that gift is still OK.  

There are some ways around this ‘no gift to interested witness’ rule.  If there happened to be more than two witnesses to the will (you can have as many as you like), and the other two were ‘disinterested witnesses’ then because they are independent and they are the minimum independent witnesses needed, then the gift to the interested witness can still go ahead.  Also, if all the people who might have taken the gift that the interested witness couldn’t take agreed, then the interested witness could take the gift.  Finally the interested witness could appeal to the Supreme Court to allow them to take the gift (ss 13 & 14 Wills Act 2008).  The Court has to be satisfied that the gift was known to and approved by the testator and not included in the will as a result of any fraud, duress or undue influence. This will be an expensive process so it’s best to get it right in the first place and make sure any witness to the will does not get a gift in the will.

What if the testator is blind, illiterate or does not understand English at all, or well?  This is no bar to making a will.  What it does mean is that care has to be taken to make sure that the testator knows what is in their will and approves of it.  So, for example, a will made for a blind or illiterate person should be read aloud to them in the presence of witnesses and then, for safety, those witnesses should sign an attestation clause that explains what the process was.  A person who does not understand English could sign a will made in their own language, or could have a will made in English translated to them before signing, and this could be recorded in the attestation clause.  Physical disability can be overcome in this way.  The will should be read aloud by an uninterested third party, preferably a solicitor, and not a beneficiary or one of the witnesses.

Overview of what you need for a valid Will

A valid Will must be signed:

• using the correct formalities (the steps above), 
• the testator must have the intention to make a will,
• they must know of and approve the contents of their will
• there must be no suspicious circumstances surrounding the will and
• the testator must have capacity to make a will – in other words, are they of sound mind and old enough (18) to make a will.

Capacity to make a will

A testator must have ‘sound mind, memory and understanding’ when they make their will, or else the will will be invalid.  It won’t matter that it’s been perfectly signed up, it will be invalid.

By ‘sound mind, memory and understanding’ we mean that:

• the Testator must understand the nature of what s/he is doing; 
• the extent of the property being disposed of, 
• and appreciate and evaluate the claims on him/her by others to which s/he ought to give effect 

If a mental disease will affect the disposal of the property the will is invalid – if it doesn’t affect the disposal, then we don’t have a problem with the will.  It’s the disposal of the property that is important.  You could have delusions about devils following you, but so long as those delusions don’t affect how you dispose of your property in your will, the will will be valid.  You can make a will when you are drunk, or depressed, or in extreme old age, or in illness, or even an eccentric will – so long as you knew and understood what you were doing, who you should give your estate to, and the extent of your property.  You could even make a valid will during a lucid interval though you were normally of unsound mind.  If you can show you were temporarily sane, then the will will be valid.

We only need to be sure that the testator understood that they were making a will, not each and every clause, and we don’t need to prove that they remembered each and every piece of property they had to give away – a general knowledge of their property is enough.  

How do marriage and significant relationships affect a will?

Marriage or the registration of a deed of relationship can affect your will.  Normally your will will be revoked (invalidated) automatically if you get married or register a deed or relationship after you have made your will.

But if your will was made in contemplation of the marriage or deed of relationship then it 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.  (See s 16 Wills Act 2008)

How does divorce or revocation of a deed of relationship affect a will?

A divorce or revocation of a deed of relationship revokes any gift to the spouse/partner, and any powers given to them, such as the power of executor, trustee, guardian and so on.   It also revokes any grant of a power under the will made in favour of the testator’s spouse or to be used by them (s17(1), Wills Act 2008). 

But if the spouse is a trustee for beneficiaries, including the spouse’s children, then that is not revoked. The same goes for a spouse who has a power of appointment to be exercised in favour of the 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 keep a will. Other options are the Public Trustee, trustee companies, insurance companies, and banks. All can hold a will for a testator. 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 a good idea 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 be an executor?

An executor must be over 18 years of age. It is preferable that executor/s live in the same state as the testator, and that two be named, in case one executor dies or can no longer act as an executor. 

A testator would want to appoint someone they believe is trustworthy, has a close relationship with them, and either of around the same age, or younger. If a person dies, and no executor is named, the Supreme Court can appoint one, including a private trustee or the Public Trustee. 

Do It Yourself Will Kits

There are a lot of 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, benefitting charity organisations over family. 

If you are a single person, with only one living relative, you live in rented accommodation, and only have a superb collection of Star Wars figurines that you wish to pass on to your relative, 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 18 to two separate partners, and a large amount of superannuation, you are in a complex situation and need legal advice.