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How to make a Will

To make a Will, we’ll meet with you to get your instructions about division of your assets and belongings.

We’ll need as much information as possible, as well as details about the people who’ll inherit: the beneficiaries. We’ll also need information about who you’d like to administer your estate after you’re gone. This person is known as the executor.

Having a Will is important, but you might never have quite gotten around to making one.

The point of having a Will is that life is uncertain.  Maybe you’ll live until you’re 100 years old – maybe not. And if you don’t, the best way to reduce the impact on your loved ones is to have your affairs in order.

Even the simplest of Wills must meet technical legal requirements. We’re experts at preparing Wills in South Australia. We’ll help you look after your loved ones.

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What are the requirements for a valid Will in South Australia?

South Australian laws say that to be valid, a Will must be:

  • In writing
  • Signed and dated by the testator in a particular way, using particular wording, on particular parts of the document
  • Witnessed and dated in a particular way, using particular wording, on particular parts of the document
  • Clear that the testator intended to make a valid Will

Will preparation requires specific language to ensure that your intentions are clear.

Even the smallest mistakes may invalidate your Will, or at least part of it. If part of your Will is invalid, it will be up to someone else to decide how to deal with that part of your estate.

If the entire Will is invalid, your estate will be administered as if you had died intestate; that is, without a Will. You’ll no longer have control over who gets what for any invalid gift provisions of the Will.

What is legal capacity and why is it important?

The law says that you must have legal capacity to make a Will.

South Australia’s Will-making laws are strict. It’s to ensure that people who make Wills (testators) are freely giving instructions about what will happen to their property. The laws try to safeguard a person from being threatened or coerced into making a Will in a certain way or being tricked or defrauded into making specific bequests.

One way of safeguarding against these things is the test of capacity: the law says that you must have legal capacity to make a Will.

You have legal capacity if you’re aged 18 years or over.

But the law allows some minors to make Wills. For example, if you’re under the age of 18 years but already married, or with the permission of the Supreme Court of South Australia.

The other aspect of legal capacity is the requirement for mental capacity.

If you’re making a Will, you must have the mental capacity to do so.

Mental capacity can often become a problem if you have a neurological condition, for example, brain damage or dementia.

If a person lacks capacity to make a Will, it’s likely that the Supreme Court will decide that the Will is invalid.

For the Will to be valid, you must understand:

  • That the document is a Will
  • The purpose of the Will
  • The type, size and nature of your estate
  • That by signing it you are giving directions about the distribution of your property after your death
  • Who can make a claim against your estate and any risk of them making a claim

Before making a Will, you should see us for legal advice if:

  • You’re uncertain whether you have mental capacity

  • You’re concerned about the possibility of a challenge to your capacity

  • You’re under the age of 18 years

Need advice? Just ask us a question

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What happens if I die without a valid Will?

If there’s no valid Will, an administrator must be appointed to deal with the estate.

If you pass away without a valid Will, it may be because:

  • you didn’t have a Will; or
  • you had a Will that didn’t comply with legal requirements, making it invalid.

Sometimes only part of a Will is invalid. For example, your Will leaves your diamond ring to your daughter, but you own two diamond rings. It’s unclear which ring goes to your daughter. So, the Court may say that section of the Will is invalid, while the rest of the document is valid. The Court may also direct that the executor decides which ring to give to whom.

If there’s no valid Will, an administrator must be appointed to deal with the estate. While you may think this is like having a Will, the point is that you don’t get a say in who administers your estate and you don’t get a say in how it’s divided. For more information, see Estate administration.

Frequently asked questions

How long it takes to make a Will depends on:

  • Whether you’re able to locate all your assets and how much detail you can give us about them
  • Whether you can provide full names and addresses of all your beneficiaries and their relationships to you
  • Whether you’ve considered who gets what, should any of your beneficiaries die
  • Whether you’ve considered who will be your executor, and who will step in as executor, should your first choice be unable to act
  • Whether you have any business assets and how you wish to deal with them
  • Whether it’s necessary to set up a family trust to protect your assets
  • Whether we need to look at ways to minimise potential tax liabilities
  • Whether there’s any possibility of a claim being made on your estate by a person who thinks they should have been a beneficiary, or by a beneficiary who says they should have received more

For simple Wills, it’s usually 1 to 2 weeks to make your Will, but it can be prepared more urgently if required.

Will kits, otherwise known as DIY Wills, are popular because testators don’t have the legal costs of lawyers drafting their Wills. But many people don’t realise how specific the legal requirements are, especially when it comes to signing and witnessing a Will. And some Will kits are sold Australia-wide, even though each Australian State and Territory has its own laws for making a Will.

If a DIY Will is invalid, it’s often not discovered until after the testator’s death. Sorting it out may amount to thousands of dollars in legal fees, paid from the estate. This means that there’s less for the beneficiaries. So, if you’re not extremely careful when using a DIY Will kit, things can go pear-shaped. On the other hand, getting a lawyer to draft your Will may cost you just a few hundred dollars. It’s worth considering.

It’s wise to update your Will whenever there’s a significant life change.

For example:

  • You have a baby or adopt a child
  • Your partner or spouse dies
  • You separate or divorce
  • You marry (because marrying will invalidate any prior Will)
  • You’re in a de facto relationship
  • You move to a new address
  • You buy or sell a significant asset

Even if there’s no big change in your life, we recommend reviewing your Will every three to five years.

Power of Attorney:

A Power of Attorney is a document that grants someone else (your attorney) the ability to make legal or financial decisions on your behalf, should you be unable to do so. Your attorney can also sign documents on your behalf. Powers of Attorney are commonly activated when a person is overseas or lacking mental capacity. Your attorney is usually someone you know and trust.

Advance Care Directive:

An Advance Care Directive is a legal document appointing someone to make personal, medical and lifestyle decisions on your behalf, should you be unable to do so. This person is known as your Substitute Decision Maker and should be someone you know and trust. It can’t be someone who is paid to care for you (such as your doctor, nurse or a professional paid carer).

The Substitute Decision Maker must act in your best interests, consider your wishes and if possible, make the same decision that you would have made.

We recommend that you instruct us to draft the following documents at the same time as you make a Will:

  • Power of Attorney
  • Advance Care Directive

We can draft these documents for you and will provide more information when you book an appointment to make your Will.

An executor is the person responsible for dealing with your estate after you’ve passed away. For your Will to be valid, you must nominate a person to be the executor of your estate.

Executors must locate all the assets of the estate. Some may be sold to pay off any debts. Payment of all debts must occur before finalising the estate. Any remaining assets are then distributed to the beneficiaries according to the terms of the Will.

Executors must act with diligence, and they must finalise the estate as soon as possible. The executor must not be negligent or steal from the estate.

This is the process of registering the Will with the Court. It authorises the executor to deal with the assets and debts of the estate and distribute to the beneficiaries.

Where a person has died and there is a valid Will, the executor may need to apply to the Supreme Court for a grant of probate. This is the process of registering the Will with the Court. Probate is a letter from the Court. It authorises the executor to deal with the assets and debts of the estate and distribute to the beneficiaries according to the terms of the Will. A grant of probate is often an essential step in the process of distributing an estate. Without it, an executor may not be able to legally deal with the estate.

Let’s say you were living in another country and you made a Will while you were living there. If made according to the laws of that country, often it will be recognised by South Australian law.

However, we recommend that you make a new Will as soon as you can after relocating to South Australia. This may make it simpler to distribute your estate, should you happen to pass away.

You can choose what happens to your Will after it’s signed, dated and witnessed.

  • We can store it on your behalf in our water-proof, fire-proof document storage room.
  • We can also register it with the Law Society of South Australia’s Wills Register, which may help your executor find the original document if necessary.
  • Alternatively, you may wish to store it in a safety deposit box at a bank or other institution.

The original document needs to be secure and safe from damage. You should keep a copy for yourself, and provide copies to your executors with instructions about where to find the original Will.

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