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What Is A Testator?

A testator is someone who makes a will to dispose of their property and account for their debts after death. In order for a will to be valid, the testator must have what is legally described as “testamentary capacity”, that is, they must be of sound mind and capable of understanding the significance of making a will. A testator must also make their will without being unduly pressured or coerced. This article explains the nature and responsibilities of a testator.

Testators And Testatrixes

The term “testator” comes from the Latin meaning “one who makes a will or one who bears witness”. Historically, a testator is male and a testatrix is female, though this distinction has fallen out of use in favour of an all-inclusive term.

A testator must be of sound mind and at least eighteen years old. On occasion, it is advisable for a minor child to have a will, despite their age, because they have sizeable assets (for instance, from inheritance, occupation, or a compensation payment). There are limited circumstances where the Supreme Court may waive the age requirement, if the child understands the purpose and effect of making a will, and if there are special circumstances where it is inappropriate for the child’s estate to be inherited according to intestacy succession rules.  This scenario might occur, for instance, where a child actor with significant personal assets is estranged from their parents. In that case, if the child passed away then intestacy laws would benefit the parents, so it is appropriate for the court to allow the minor to leave other testamentary instructions.

Testamentary Capacity

A testator must have the requisite testamentary capacity to make a will. If the courts find that a testator was not legally competent at the time of making a will, that will is declared invalid and either a prior will is probated, or in the absence of a valid prior will, the estate is administrated according to intestacy legislation.

Legally, a testator must:

  • comprehend the nature of a will and how it will affect their deceased estate;
  • understand the general nature of the assets of their estate. If a testator’s will mentions their range of assets and makes no fantastical claims of ownership, then a testator likely knows their own property;
  • understand who has a reasonable entitlement to inherit. For instance, if the testator does not know or remember that they have a spouse or children, and leaves their property to someone other than these family members, then there is reason to doubt their comprehension of succession entitlements; and
  • be able to make rational decisions unimpeded by a mentally debilitating disability or medical condition. If the testator suffers from a condition such as dementia, they may not be able to make appropriate decisions about their estate.

Responsibilities Of A Testator

One of the first ways that a testator establishes testamentary capacity is through signing their will in the presence of several impartial witnesses, who themselves sign the will and attach contact details to the document. In this way, a testator is responsible for drafting their own will with regard to the statutory rules of will-making or having a qualified solicitor draw up their will to be clear and valid.

A testator is also responsible for providing clear information in their will as to their wishes for their estate after their death. The intent is that the testator’s instructions are sufficient so that their family will not have to guess as to their wishes. If the provisions within the will are unusual, it is advisable for the testator to leave explanations of the bequests, as this will not only hopefully forestall arguments amongst the beneficiaries, but also provide some context in case the will is contested.

The testator should make it as simple as possible for their loved ones to handle their estate after their death. A testator should nominate an executor or several executors in their will to administrate the deceased estate, and leave comprehensive instructions for their executor to follow. The testator needs to secure the will in a safe but accessible location and inform someone of the whereabouts of the will so that it can be located after the testator’s death. It will be helpful for the testator to gather all the documentation about their liabilities and assets together and store it either with the will or in another designated location so that the executor is not forced to do extensive searches.

There are further actions that a testator can take to streamline the process of estate administration. A testator can pay outstanding taxes and debts on an annual basis, pre-pay their funeral and burial costs, arrange joint tenancy ownership of assets, make gifts to family and friends of personal items, and resolve any outstanding legal matters.

If a person does not make a valid will before they die, they are declared intestate and their estate is administered according to intestacy rules. The contested wills team at Armstrong Legal can help you draw up your will to avoid your estate being declared intestate. Our solicitors can also answer any questions you have about your rights and responsibilities as a testator. Please phone 1300 038 223 or contact our solicitors to discuss your legal needs.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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