It may sound like a silly question. We all know a Will when we see one. They’re usually of fairly standard appearance, headed Last Will and Testament and signed by the Will maker and two witnesses.
But all may not be as it seems.
A document that looked like a Will
A case in point is the home made Will of Kylie Smith, not her real name, which read as follows.
LAST WILL OF KYLIE SMITH
I GIVE MY SON MICHAEL SMITH THE POWER TO DISPOSE OF MY POSSESSIONS PRIOR TO MY DEATH.
[SIGNED BY K SMITH IN THE PRESENCE OF TWO WITNESSES]
It’s headed as a Will. It’s signed. It’s witnessed by two people.
It isn’t a Will.
What does testamentary mean?
An essential requirement for a Will is that it be testamentary, meaning that it takes effect on the death of the Will maker and not until death.
Kylie Smith’s “Will” took effect at the time she signed it, before her death rather than on it. It’s therefore not testamentary and not a valid Will. What she’d actually written was closer to a power of attorney, badly expressed and it did nothing at all to dispose of her estate.
It’s necessary to look beyond the heading and the signatures to work out whether a document is in fact a Will.
What else gets mistaken for a Will?
Several documents do part of the job people think a Will does and none of them is a substitute for one.
An Enduring Power of Attorney. It operates while you’re alive and stops at your death. Your Will operates only after your death. Neither covers the other. See EPOA and EPOG in WA: who makes decisions if you lose capacity.
A superannuation death benefit nomination. It directs your super, which usually isn’t part of your estate at all. It says nothing about anything else you own. See Estate planning trap no. 1 – superannuation.
A letter of wishes. A note to your executor or your family explaining what you’d like done. It’s often useful, but it isn’t legally binding.
An advance health directive. Sometimes called a living Will, which is where the confusion comes from. It records your treatment decisions while you’re alive and has nothing to do with your estate.
Can a document that isn’t a proper Will still count?
Sometimes. The Court has a power to admit an informal document to probate where it’s satisfied the person intended it to be their Will. Notes, drafts, letters and unsigned documents have all been admitted in the right circumstances.
That power doesn’t rescue Kylie Smith’s document, because the problem there wasn’t the form. She didn’t intend it to operate on her death, so there was no testamentary intention to find.
Relying on it is a poor plan in any case. See Estate planning trap no. 2 – home made Wills.
Frequently asked questions
How do I know if my Will is valid?
It has to be in writing, signed by you in the presence of two witnesses who sign in your presence, made while you have capacity and it has to dispose of your property on your death. A document failing any of those may not be a Will at all.
Is a Will kit a valid Will?
It can be, if it’s completed and signed correctly and says clearly what you intend. The failures we see are usually in the completing or signing rather than in the kit.
Is a handwritten Will valid in WA?
Yes, if it meets the same requirements as any other Will. Being handwritten isn’t the problem. Being unclear or not properly signed and witnessed is.
What happens if my document turns out not to be a Will?
Your estate falls back on your previous Will if you have one. If you don’t, you’ve died intestate and a statutory formula decides who inherits. See What does it mean to die intestate?
Have your Will checked
If you’ve made a Will yourself or you’re holding a document you’re not sure about, bring it in. It costs a great deal less to find out now than for your executor to find out later.
Book an appointment or call the Wills team on (08) 9220 4433.
This article is general information and not legal advice.
