Executing a Will is an extremely important process. All too regularly, we see Wills that have been either prepared at home through a “Will-kit”, or prepared by solicitors and witnessed at home, where the Testator (the Willmaker) and witnesses have not observed the proper formalities. It is usually a surprise to the Executors to find that signatures appearing on the face of the Will are not sufficient to prove that the Will is valid. Much time, heartache and expense could be saved if more people appreciated the importance of properly witnessing a Will.
In South Australia, the requirements for a properly executed Will are set out in Section 8 of the Wills Act 1936. Basically, a Will must be:
- signed by the Testator;
- in the presence of 2 or more witnesses all present at the same time; and
- the witnesses must sign the Will; and
- the witnesses must do so in the presence of the Testator.
In a practical sense, after a death the Probate Registry must determine whether these steps have been met. Because it is not possible to verify the same simply from looking at the document, there are certain policies in place and assumptions made. In certain cases, evidence must be provided in the form of Affidavits in order to prove that the Will is valid. For example, where a Will is prepared and witnessed by a solicitor, the Probate Registry will assume that the execution was performed in the proper manner. However, where a Will is not witnessed by a solicitor, or is in the nature of a Will-kit or other homemade Will, the Probate Registry generally requires evidence from the witnesses to explain how the Will was executed. This is where it gets tricky.
There may be many reasons why an Affidavit of Due Execution from the witnesses to the Will cannot be prepared. Often, the Will is many years old and the witnesses have also died. In other cases, the witnesses cannot be located. Sometimes the witnesses haven’t printed their names or addresses on the document. Sometimes the witnesses are complete strangers to the Testator, for example a Justice of the Peace or a Nurse at a hospital. In such cases, even if a witness can be located, and whether or not they knew the deceased, there is no guarantee that an appropriate Affidavit can be obtained. For example, we often see neighbours or friends who have been asked to witness a Will but cannot remember what happened at the time. Even worse, the witness remembers that the Testator did not sign in their presence. Or they can’t remember in what order the Will was signed.
Just because the Will is uncontroversial and everyone agrees that it sets out a fair and proper distribution of a deceased’s estate, the Probate Registry will not accept the Will as valid without appropriate evidence. You may easily find yourself in the position of having an invalid or informal Will that must be dealt with through a Court hearing rather than the usual simple Probate procedure (which is expensive enough as it is).
If this Wills and estate lawyer could get one message out to the world about Wills and estate planning, it would be to take your Will seriously. The expense of having a solicitor prepare your Will is nothing compared to the expense that can result from dealing with an improperly executed Will after your death.
If a neighbour or friend approaches you to sign a Will you can assist my making sure that:
- They sign it first;
- They sign it in front of two witnesses;
- The witnesses then sign, write their name and address while all three are together at the same time; and
- Everyone uses the same pen.
Even better, make notes about what happened (not on the Will itself). Being a witness to a Will is not just about signing your name. You could be called upon at any time in the future to give evidence about what happened. The evidence you give could help or hinder the administration of the Estate.
For further information please contact Michelle Crichton, our wills & estates and family lawyer, on 8362 6400 or email Michelle Crichton. Join our mailing list to receive updates and advice on current issues.
