Making A Will in Western Australia

A will is a legal document that specifies a person’s directions for their estate when they die. In Western Australia, wills are governed by the Wills Act 1970.

In the document, a person can leave instructions for any property to which they are entitled at the time of their death. It can also contain instructions about, for example, the care of children or pets, funeral arrangements, and donations to charity.

Execution

To be legal in Western Australia, a will must be:

• in writing;
• signed by the person making it (the “testator”);
• signed by the testator in the presence of 2 witnesses aged over 18, present at the same time.
• signed and attested to by the witnesses in the presence of the testator.

It should also be dated. If there is no date listed, the witnesses may have to swear an affidavit as to the date it was signed. The date is important to prove the will is the testator’s last one.

A will made by a person aged under 18 is not valid. The witnesses must be also aged at least 18 and not be a family member of the testator. They also cannot be a beneficiary or know someone who may benefit from the will.

The will takes effect as if it had been executed immediately before the testator’s death. If the testator has disposed of some of the property for which instructions have been left, any remaining property can be distributed.

The testator nominates an executor to be responsible for carrying out the testator’s wishes, mainly distributing assets to beneficiaries after all debts and taxes are paid.

A will should be kept in a safe place. A solicitor will usually store it at no charge and provide a copy to the testator. The executor should be told where the document is stored so it can be located easily upon the testator’s death. A will can also be deposited with a court registrar, usually for a fee.

Interpretation

If language used in the will make the will or part of it meaningless, or ambiguous on the face of it or in the current circumstances, a court is permitted to consider evidence of the testator’s intention to help interpret the language used.

Informal wills

A court can declare any document to be a valid will, or an alteration, revocation or revival of a will, if it is satisfied the testator intended that be the case.

Under the Act, “document” has a broad definition and means any record of information, including:

• anything on which there is writing;
• anything on which there are meaningful marks, figures, symbols or perforations;
• anything from which sounds, images or writing can be reproduced;
• a map, plan, drawing or photograph.

Revocation

A will is revoked by:

• the making of a new one;
• entering a marriage;
• divorce, annulment or end of a marriage;
• the testator burning, tearing or otherwise destroying it with an intention to revoke it;
• the testator declaring in writing in a way an intention to revoke it.

Updates

A will should be updated in situations such as when:

• the testator marries or enters a de facto relationship;
• the testator separates, divorces, or ends a de facto relationship;
• the testator has children or grandchildren;
• an executor or beneficiary dies;
• a testator buys or sells property;
• a testator’s financial situation changes significantly.

If the change is minor, the testator will need to make a codicil, which is an authorised amendment. It needs to be in writing, and signed and witnessed by 2 people. If the change is major, a new will is usually required.

Lack of testamentary capacity

A court can make an order to make, alter or revoke a will on behalf of a person who lacks “testamentary capacity” (soundness of mind), such as when a person is suffering from dementia. The order can be made only if the person is living and aged at least 18. An application for an order must include:

• the reasons for it;
• any evidence as to the wishes of the person concerned;
• evidence as to the likelihood of the person concerned having testamentary capacity at a later time;
• evidence of efforts to determine the circumstances of any likely beneficiaries, and any such details of those circumstances;
• details of any existing will, or of efforts to locate such a will.

To make alter or revoke a will after an application, the court must be satisfied that:

• the person concerned is incapable of making, alerting or revoking a will;
• the suggested will, alteration or revocation is one which could have been made by the person concerned if they were of sound mind;
• the applicant is an appropriate person to make the application;
• adequate steps have been taken to allow all people with a legitimate interest in the application to be represented.

Dying without a will

A person who dies without a will is said to have died “intestate” and their estate is distributed according to the formula set out in the Administration Act 1903. Using the formula, the person’s estate becomes the property of next of kin, in order of priority listed under the Act.

For advice or representation in any legal matter, please contact Armstrong Legal.