It's important to have a will. It allows you to choose what happens to your assets upon your death and makes the process easier for your family.
Let’s Start at the Beginning- What is a Will?
A will is a written document which sets out your wishes for the distribution of your property upon your death.
A will includes:
- An appointment of executors (who take charge of your affairs when you die)
- An appointment of trustees (who invest your estate for any beneficiaries that cannot inherit immediately)
- The powers to be granted to or the limitations upon the executors or trustees
- Appointment of guardians of any young children
It is important to be aware that a will only applies to assets in the deceased’s own name. Assets held jointly automatically pass to the other person (unless it is held as tenants in common).
What are the requirements of a valid will?
The Wills Act 1936 (SA) sets out the legal requirements that must be satisfied for a will to be valid.
- You must be 18 years of age to make a will
- It must be in written form and signed by you
- It must appear from the will that you intended to give effect to it by signing it
- You must sign the Will in the presence of 2 witnesses who must also sign the will in your presence
- You must have testamentary capacity to make the will
The Supreme Court, with the help of section 12(2) of the Wills Act may accept a will as valid even if the above requirements are not satisfied. It will need to be satisfied that the document expresses the testamentary intentions of the deceased person and the deceased person intended the document to constitute his or her will. There would be significant costs however in this determination being made.
If there is any doubt as to a person’s mental capacity to make a will, particularly due to the person’s age, it is always prudent to have the will prepared by a lawyer and obtain a medical report in relation to the person’s capacity from their general practitioner. It can be vital in defending a potential challenge and, in turn, reduce costs to the estate in defending a challenge.
It is preferable that the will not be witnessed by either beneficiaries or executors to the will.