What Is A Testator? (NT)
A testator is someone who makes a last will and testament to dispose of their estate after their death. Only an adult (or approved minor) with testamentary capacity can make a valid will. The law used to gender differentiate between the term testator (for men) and testatrix (for women). In modern usage, “testator” is an all-inclusive term that refers to everyone. This article defines a testator in the Northern Territory.
How A Testator Makes A Will
In a will, a testator names beneficiaries to inherit their assets and appoints an executor to wrap up their affairs. The testator can also leave other general non-binding instructions in their will, such as wishes for their funeral, or instructions for the care of any minor children or pets.
For a testator’s will to be legally valid in the Northern Territory, it must meet statutory requirements outlined in the Wills Act 2000. A will is only a formal valid will when it is a written document that the testator signs in the presence of two non-beneficiaries of the will who witness the document. The testator themselves must be 18 years or older, or alternatively, they must have the permission of the Northern Territory Supreme Court to make a will as a minor. While most minors have no need to make a will because they own few assets, other children have substantial assets from an inheritance, compensation pay outs, or employment. The court can only make such an order if the child is able to understand the purpose and effect of a will. There is also an exception if the underage testator is married or contemplating a marriage that actually takes place.
Testator’s Testamentary Capacity
Additionally, a person must have testamentary capacity in order for their will to be valid and binding. This means that the testator must have sufficient mental competence to understand:
- The nature and effect of the will;
- The extent of their property;
- Who has a legal and moral right to benefit from the will; and
- Not suffer from a disorder or disease that negates their capacity to make rational decisions.
Notably, a person might be diagnosed with a disease that affects their competency, but still have lucid periods during which they have sufficient testamentary capacity to make a valid will. For instance, a person suffering from early-stage dementia may have episodic delusions but still be up to making their own will before the disease progresses too far.
The Supreme Court can overturn a will if the testator lacked testamentary capacity when they executed the will. The Supreme Court can also order that a statutory will be made on behalf of a person who lacks capacity to make their own testamentary arrangements. In that case, the applicant (typically the person’s next of kin or guardian) presents a draft will that is a fair and reasonable distribution of the estate. The applicant also needs to provide compelling evidence that the draft statutory will reflects what the person’s wishes would be if they were capable of making a will. If the Supreme Court agrees that the arrangements are reasonable, then the will is made in the name of the incapable testator.
A testator is responsible for making sure they abide by the formal requirements when making their will. It is also important that they adequately communicate their intentions. Not only must they emphasise that the document is intended to be their last will, but the bequests and other instructions must be as clear as possible to avoid confusion after their death. If the instructions are not clear enough, the executor will have to ask the court for clarification, causing undue delay and expense to the deceased estate.
The testator must ensure that their will is an up-to-date reflection of their intentions and their assets and liabilities. If the testator passes away and their will has not been updated in decades, it is probably not an accurate record of their existing property. Also, the executor and beneficiaries named in the will may themselves have passed away before the will is enforced.
Why A Testator Needs Legal Advice
It is prudent for a testator to seek guidance from a solicitor when preparing a will. Most testators need to make some testamentary arrangements that are unique to their own circumstances, which means taking legal advice to ensure the will is binding.
The team at Go To Court Lawyers is here to help you with any questions about making a valid will. Our solicitors will ensure that the will meets formal requirements, and thoroughly check that your assets are accounted for in the document. Importantly, a solicitor can discover any errors in your will that could lead to confusion and incur legal costs or challenges to the validity of the will. With experienced legal help, you can ensure that your will has the effect that you intended. Please contact our experienced solicitors on 1300 636 846 for any legal assistance.