A Will is a document that sets out how your property is to be distributed when you die. A handwritten Will is adequate for this purpose, however, it is open to interpretation and potential challenges if it is illegible or there are messy edits.
For a Will to be valid it must meet additional criteria in accordance with the Wills Act 1936 (SA). If your Will is deemed invalid, your estate will be distributed in accordance with the rules of intestacy. This may conflict with your wishes.
A valid Will is one that is:
- either neatly handwritten or typed and printed out;
- is made by someone of sound mind, memory and understanding, and acts without undue influence;
- signed and dated (preferably every page) by the testator (the person making the Will) in the presence of two independent adult witnesses;
- named, co-signed and dated by the two witnesses, in the sight and presence of each other and the testator;
- states that it is your last Will and you revoke all previous Wills; and
- appoints one or more people to be your executor.
An executor or trustee named in your Will may be a witness, however a beneficiary should not witness the Will.
Alterations should not be made after the Will has been signed, but if necessary, any changes must be initialed by the testator and both witnesses in each other’s presence.
If a Will fails to meet the above requirements, an application can be made to the court to consider its validity. This process may be expensive with no guarantee of success. However, if the court is satisfied that the document expresses the testamentary intentions of the deceased, it can be admitted to probate.
A Scammell & Co lawyer can draft a valid Will on your behalf and advise on the most appropriate Will structure which considers your asset pool and the interests of beneficiaries (including any tax implications).
For further information on our Wills and Estate Planning services follow the link here