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What Happens if a Will is Torn or Marked? (WA)

When a person makes a will in Western Australia, the will is generally valid until the testator revokes it, provided the formal requirements such as signing and witnessing have been complied with. Informal wills may also be found to be valid where there is evidence that the deceased intended the document to their last will. But sometimes, when a testator dies, the will is torn or marked or otherwise damaged and questions arise as to whether it is still valid. This article examines what happens when a will is torn or marked in WA.

Will is torn or marked to revoke it

Under section 15 of the Wills Act 1970, a will can be revoked by:

  • Making a later will;
  • Making a written document declaring an intention to revoke it;
  • By the testator, or another person in their presence and at their instruction, burning, tearing or otherwise destroying it in order to revoke it.

Will is torn or marked to vary it

Under section 10 of the Wills Act 1970, a will can be altered if the alteration is signed by the testator and witnesses either in the margin or near the alteration or as authentication of a memorandum referring to the alteration and written on the will.

Criminal offences involving interfering with a will

It is a criminal offence to steal, destroy or interfere with a will in WA, whether the testator is living or dead. The following offences and penalties apply.

Concealing a will

Under section 380 of the Criminal Code Act Compilation Act 1913, a person who conceals a will with intent to defraud is guilty of a crime. The maximum penalty that applies is 14 years imprisonment.

Stealing a will

Under section 378 of the Criminal Code Act Compilation Act, a person who steals a testamentary instrument is liable to imprisonment for up to 10 years.

Possessing unlawfully obtained will

Under section 417A, a person who is in possession of a testamentary instrument that was unlawfully obtained is guilty of a crime. The maximum penalty that applies is ten years imprisonment.

Will is torn or marked accidentally

If a will is torn or marked and it appears that this was not done deliberately, the executor may eek to have it accepted into probate. In order for the court to accept the document, it will need to see evidence as to how the will became damaged and be satisfied that the testator did not intend to revoke the will.

Testamentary capacity

One of the requirements for any will to be legally binding is that the testator must have had testamentary capacity at the time the will was executed. Testamentary capacity is the ability to make a will and understand its effect. A person may be found to lack testamentary capacity because of a mental illness or intellectual disability. The level of capacity that is required differs depending on the complexity of the will and the number of claimants.

If a person no longer has testamentary capacity and seeks to revoke or alter their will, the revocation or alteration will have no effect.

Will cannot be found

Sometimes a person passes away, and although their family knows that they left a will, the will cannot be found.

In this situation, if the will was known to be stored by the testator, it will be presumed that the testator destroyed it with the intention of revoking it. If the will was stored elsewhere and cannot be located, the executor will need to produce a copy of the will to the probate office together with evidence that the will was not revoked. The copy may be unsigned but evidence must be produced that it was signed at a later date.

If neither a copy of the will nor the original will can be found, the estate will be dealt with under the laws of intestacy.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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