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Home | Blog | Will Formalities – the Importance of Professional Legal Advice

Legislation in every state of Australia specifies how a Will should be written and executed. In South Australia, this law is found in section 8 of the Wills Act 1936 (“the Wills Act”).

The legislation states that the will must:

  • be in writing;
  • be signed by the Willmaker (or another person in the Willmaker’s presence and at his or her direction)
  • appear that the Willmaker by his or her signature to give effect to the will;
  • be made it acknowledged by the Willmaker in the presence of at least two witnesses present at the same time;
  • be attested and signed by both witnesses in the presence of or acknowledged in the presence of the Willmaker.

Even if just one of these requirements is not followed, the Court will start asking questions, requiring proof to satisfy their suspicions. They may require a named executor or a member of the deceased’s family to make an application that the document, although not prepared in accordance with the law, be admitted as the deceased’s Will. Again the Court would require evidence to satisfy the application.

The law that allows the Court to admit informal Wills to probate is found in section 12(2) of the Wills Act. This section was originally introduced in 1975. South Australia was Australia’s first state to introduce this; allowing documents that were not prepared in accordance with section 8 to be valid so long as they expressed testamentary intentions of the deceased and were intended to be the deceased’s Will.

Australia’s formal requirements for making wills originated in England in the 16th century. Legislation describing the formal requirements of wills was introduced in 1540, stating, like South Australia’s current section 8, that wills needed to be in writing. Prior to that time, and even for about a century after oral wills, if declared before a number of witnesses, could sometimes be valid.

There are five main reasons behind the introduction of will formalities[1]. These include:

Evidentiary

Writing preserves the language used to express the Willmaker’s intentions and provides a degree of certainty as to the Willmaker’s wishes. Relying on writing instead of witnesses of oral wills helps reduce the problem of witnesses also dying or having difficulty recalling the Willmaker’s wishes. Willmaker’s may also want to keep the contents of their Wills private from their witnesses.
The requirement for a signature helps the document to appear authentic and final.
The signing by the Willmaker and witnesses can assist to prevent improper changes to the will being made after.

Ritual

The formal requirements ’emphasize the solemnity of the testamentary act and tend to preclude the possibility that the testator [willmaker] was acting casually or haphazardly’. In other words, the requirements show that the Willmaker was serious, and intended to formalize the document and make it has Will, rather than just a draft or ideas.

Cautionary

The requirements encourage the Willmaker’s to think carefully before making their Will. It is an important document and is intended to be your final wishes regarding disposition of property obtained throughout your life. The document is intended to outlast the Willmaker and speak for him or her when he or she cannot. It is not a document to be taken lightly.

Protective

The formalities can assist help protect clients from fraud and undue influence.

Channelling

Having a professionally-drafted Will, completed in accordance with the formal requirements, can aid the Court to determine the nature and intention of the document and whether or not it was valid and legal. It can also minimise legal costs and disputes, and provide a higher degree of clarity and certainty. A Will is evidence of a person’s intentions.

The functions of the will requirements as described above explain why a homemade Will, or DIY kit will can cause such a headache and other difficulties. A Will should not be taken lightly by anyone, and certainly isn’t taken as such by the Courts. The formal requirements to prepare a Will are there for very important reasons, and any diversion from these requirements will likely lead to additional time, expense and stress to executors and the deceased’s family members.

[1] Lang, Andrew — “Formality v Intention – Wills in an Australian Supermarket” Melbourne University Law Review [Vol. 15, June 1985]

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