Making a will

Anyone aged 18 or older can make a will, as long as you have ‘testamentary capacity’. This means that you:

• understand what a will is; and
• can communicate what you want to put in your will, and why.

If there could be any doubt about whether you have testamentary capacity (for example, if you are on heavy pain medication that is affecting how you think), it’s a good idea to get a doctor’s certificate.

All adults should have a valid will. It’s the best way to make sure that your assets are distributed in the way you want after you die. If you don’t make a will, then the law decides what will happen to your property when you die, and it might not be what you would have wanted.

Even if you don’t own much, making a will is still a good idea. Having a will makes it easier for family and friends to make legal and financial arrangements after you die. Without a will, these arrangements can be complicated and expensive.

A will is particularly important for anyone with a family or dependants, especially if you are separated or divorced.

There are a number of ways to make a will.

• Talk to an expert—A lawyer can help you draft a will. Some people draft their own wills using kits bought from a newsagency or post office. However, there are certain requirements for a will to be valid and using a lawyer ensures you get it right. Lawyers charge different amounts to draft wills. Ask around to make sure you get the best deal. If you have been diagnosed with cancer and you can’t afford to pay, Cancer Council may be able to arrange a lawyer to draft a will for free.
• Use the SA Public Trustee –The SA Public Trustee can help you draw up a will for free if you appoint them as your executor. If you would like to appoint someone else as your executor, then you must pay a fee to have your will prepared. The SA Public Trustee charges fees to administer the estate after you die.

Wills usually include:

• who you want to leave your money and property to (called your beneficiaries);
• who should have responsibility for administering your estate (called the executor); and
• who should look after your children, if you and the other parent both die before the youngest child turns 18 (guardians).

Before you talk to a lawyer, have a think about who you want to appoint in these roles.

Some assets such as superannuation and insurance may not form part of your estate. Benefits may be paid directly to your dependents, which means your will won’t have any effect on them. For more information see page 5, Superannuation death benefit nominations.

For a will to be valid it must be:

• in writing – handwritten, typed or printed;
• signed – on every page and dated; and
• witnessed – two people, who are not beneficiaries in the will and who are aged over 18, need to witness your signature and sign their own name, on every page. The will-maker and the witnesses all need to be present at the same time.

Note: Witnessing a signature doesn’t mean you wrote the will, or you have read and understood what’s in it. It just means that you saw the will-maker sign the document. Anyone aged over 18 can be a witness. It’s a good idea for everyone – the will-maker and the witnesses – to use the same pen.

If your will is not made in this manner it may not be enforceable; the Court has the power to grant or not grant probate (confirm that the will is valid) and your property could be disposed of as if you had not made a will. In exercising this power, the Court needs to be satisfied that the document sets out how you want your assets to be distributed.

Keep your will in a safe place. Your lawyer will usually hold the will for you, or you could keep it with your other important documents. It’s important you tell your executor where your will is kept.

It’s a good idea to review a will regularly (e.g. every five years) to see if it needs updating.

If you have been married, you will need a new will.

If you have been divorced, separated or had children since your last will, it may be a good idea to write a new will or have your lawyer help you make a formal addition called a codicil.

Yes. The law expects people to make ‘proper provision’ for certain people. These include:

• current and former spouses;
• de facto partners who are living with you around the time of your death;
• children;
• financially dependent grandchildren; and
• any other financially dependent people in your household.

If you don’t make provision for these people, they can go to court and challenge your will.

The Court will consider their needs, their relationship to you and whether they contributed to your estate (for example, as part of a marriage).

If you want to leave any of these people out of your will, you should talk to a lawyer.

An administrator (often a relative) will be appointed to carry out similar duties to an executor’s. The law provides a formula for the distribution of assets of a person who has not left a will. This may not work out the way you would have wanted.

If you don’t have a will, legal procedures may be more complicated and time consuming. This may cause expense and worry to your family.