Introduction to Wills
Introduction to Wills

The following Wills & Probate guidance note provides comprehensive and up to date legal information covering:

  • Introduction to Wills
  • Definition and purpose of a Will
  • Will features
  • Guardians
  • Revocation
  • Conditional Wills
  • Mutual Wills
  • Joint Wills
  • Nominations
  • Secret trusts
  • more

Definition and purpose of a Will

In general terms, a Will is a document made in accordance with the formal requirements laid down by section 9 of the Wills Act 1837 (WA 1837), containing statements of the person making it with regard to the disposition of their property after their death. Wills may be distinguished from codicils which usually add to, vary, revive or revoke a Will previously made, and a person may have more than one Will, usually to dispose of their property in different countries.

On a person's death, without a valid Will, the intestacy rules would apply. A Will is usually made for the purposes of:

  1. revoking or altering any previous Will or other testamentary disposition

  2. appointing executors (or executors and trustees)

  3. appointing guardians for the testator's minor children

  4. conferring additional powers on trustees

  5. disposing of the testator's property

Note that an intending testator cannot delegate to another the task of deciding how his property is willed.

Will features

A Will is testamentary, ie. it does not take effect until the death of the testator. Whilst no particular form or wording is necessary, Wills are usually drawn in a well-settled form. The Court of Appeal decision in Re Berger established that:

  1. an instrument cannot be admitted to probate unless it contains a revocable ambulatory disposition of the