A Will valid in Western Australia is one that is in writing and signed by you in front of two witnesses who are both present at the same time. You must have reached 18 and had capacity when you made it. A Will that doesn’t meet the signing and witnessing requirements may still be admitted to probate as an informal Will, but your executor has to satisfy the Supreme Court that you intended the document to be your Will.
What are the signing requirements for a Will in WA?
Section 8 of the Wills Act 1970 (WA) sets out the signing requirements for a Will in Western Australia.
Your Will has to meet all of these:
- it must be in writing;
- you must sign it yourself;
- you must sign the Will in the presence of at least two witnesses who are both present at the same time; and
- those two witnesses must then sign the Will in your presence.
The two witnesses have to be in the room together with you. A Will signed in front of one witness on Monday and another on Tuesday does not satisfy section 8, so your executor would have to apply to the Supreme Court to have it admitted as an informal Will.
How old do you have to be to make a Will?
You must have reached 18. Section 7 of the Wills Act 1970 (WA) provides that a Will made by a person under the age of 18 years is not valid.
You also need testamentary capacity: understanding what a Will does, knowing in general terms what you own and being able to weigh the claims of people who might expect to be provided for. Capacity is assessed when you give instructions and again when you sign. See How do you know if a person has capacity to make a Will?.
Do you need a lawyer to make a Will?
No. Nothing in the Wills Act 1970 (WA) requires a lawyer to be involved, so a Will you write and sign yourself is valid if it meets section 8.
What goes wrong after a death is usually not how the Will was signed, but more often what the Will says. Home made Wills are often written in terms that are difficult to understand or interpret legally. A Will can try to deal with superannuation or a jointly owned house, neither of which passes under your Will. Wording that two beneficiaries read two different ways has to be resolved by the Supreme Court, at your estate’s expense, before anyone is paid.
Is a handwritten Will valid in Western Australia?
Yes. Section 8 of the Wills Act 1970 (WA) requires a Will to be in writing. It does not require the writing to be typed, so a handwritten Will is valid if it is signed and witnessed the way section 8 requires.
Can the Supreme Court accept a Will that was not signed properly?
Yes, in some cases. Section 32 of the Wills Act 1970 (WA) allows the Supreme Court to treat a document as your Will even though it was not signed and witnessed in the way the Act requires if the Court is satisfied you intended it to be your Will.
“Document” is defined very broadly in section 32(1), reaching anything with writing on it as well as a drawing, a photograph or a recording. The Court can look beyond the document to evidence about how it was signed and about what you said.
An application to prove an informal Will is not a formality. Your executor has to satisfy the Court that you meant that particular document to operate as your Will rather than as a draft or a note, on affidavit evidence filed at and considered by the Court. See When is a Will not a Will?.
What happens if you die without a valid Will?
If you die without a valid will you die intestate and your estate will be divided according to a fixed formula set out in section 14 of the Administration Act 1903 (WA). See What does it mean to die intestate?.
Frequently asked questions
Can a beneficiary witness your Will?
Technically yes, but it is better if they don’t. Your Will should be witnessed by two independent adults who are not named as beneficiaries in your Will.
Does your Will have to be dated?
Technically no, but best practice, absolutely. If your Will isn’t dated, your executor will need to give the Court evidence to show when it was signed. This can be difficult, complex and costly, so avoid this by making sure you write the date on your Will when you sign it.
Can a Will that was valid stop being valid?
Yes. Marriage revokes your Will unless it was made in contemplation of that marriage, under section 14 of the Wills Act 1970 (WA). Divorce revokes the whole Will in Western Australia, not only the gifts to your former spouse, under section 14A. Separation alone won’t revoke your Will. See How often do I need to update my Will?.
Talk to us about your Will
We prepare Wills in Perth for a fixed price. A simple Will is usually prepared and signed in just one appointment. Your Will is signed and witnessed in our office, so the two witness requirement is our job rather than yours.
Call the Wills team on (08) 9220 4433 or book an appointment online. Our fixed prices are published, so you know what it costs before we start. See the current prices on our Wills page.
Related: Where should I store my Will?
This post is general information and is not legal advice for your situation. Please talk to us before you act on it.
