Introduction to Wills
Introduction to Wills

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

  • Introduction to Wills
  • Definition and purpose of a Will
  • Requirements for makings a Will-intention and capacity
  • 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 by 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 (eg where they are disposing 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. ensuring the testator's property is inherited by beneficiaries of their choosing

Note that an intending testator cannot delegate to another the task of deciding how their property is willed. However, it is possible to make a Will on behalf of someone if they are not capable of doing so themselves (this is known as a statutory Will, see Practice Note: Statutory Wills—Court of Protection applications).

Requirements for makings a Will-intention and capacity

A Will is testamentary, ie. it does not take effect until the death of the testator. While no

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