The parties involved

 

Just because you should create a will, doesn’t mean you can – and just because you can witness a will, doesn’t mean you should

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 WA 1997).

A mentally incapacitated person or a very young child can also have a will made for them by the court, if the court (on application by a person acting on behalf of the incapable person) makes an order that a will be made for the incapable person or young person (ss 21–28 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 (seeWills and testamentary capacity” in Understanding disability and the law). WA 1997 also allows persons who are mentally incapable to have specific wills made for them, which are authorised by the court (ss 21–30).

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.

Where a person is very ill or old and wants to make or change a will, if at all possible the doctor treating that person should swear an affidavit to the effect that the willmaker had sufficient understanding of the circumstances to be able to carry out their intentions (i.e. that the willmaker was not so confused by either the illness or by medication as not to know what was happening). 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 the will?

There is no formal requirement that a legal practitioner must draw up the will, but if the willmaker is in doubt as to any proposed provision, either a solicitor, the State Trustees, or a private trustee company 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 persons claiming under them for any loss sustained through retention or concealment (s 66 A&P Act).

The Supreme Court can now amend wills that do not reflect the intention of the deceased 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 intention 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) WA 1997).

Interested witnesses

An “interested witness” in relation to a will means a witness to the will who, or whose spouse or domestic partner, is given any property or power by the will. A domestic partner in this context means a person who was a domestic partner of the witness at the time of witnessing. An interested witness would also include beneficiaries not named, but in a group, such as “my children”.

If any interested witness does witness the will, the will may still be proved but, in the case of wills signed before 20 July 1998, that witness will lose the entitlement to take a benefit under the will, except for certain limited circumstances (see s 13 WA 1958).

An interested witness may sign a will after 20 July 1998 without losing their entitlement under the will (s 11 WA 1997). The courts, however, may be suspicious if a witness to a will also takes a benefit under the will.

To avoid any doubts as to any eligibility to inherit, no beneficiary named in the 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.