There are a number of requirements that must be satisfied for a will to be valid.
The Wills Act 1936 (SA) sets out the legal requirements that must be satisfied for a will to be valid.
· The person making the will must be 18 years of age
· It must be in written form
· It must be signed by the person making the will in the presence of 2 witnesses who must also sign the will in their presence
· It must appear from the will that the person making the will intended to give effect to it by signing it
· The person making the will must have testamentary capacity at that time
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.
And a few more things…………
If you marry after having made a will, that will is no longer valid, unless it states that it was made in contemplation of that particular marriage.
Getting a divorce will not cancel your will, but any gifts to your former spouse are revoked as is any appointment of your former spouse as executor. The will is interpreted as if your former spouse has already died.
Separation has no effect on a will so a spouse can still inherit.