Each of the States and Territories have different laws for how a will can be validly made, although these different laws have broadly similar requirements. The rules for making a valid will in Tasmania are in the Wills Act 2008. If you make a valid will before your death, the executor named in your will applies for probate on your death in accordance with the Administration and Probate Act 1935. They will then administer your assets and your estate according to your wishes as set out in your will. If you do not make a will before you die, you die an ‘intestate’ and you cannot control to whom your assets are distributed.
When can an adult make a Will?
If you are at least 18 years of age and have ‘testamentary capacity’, you can make a valid Will. Generally speaking, having ‘testamentary capacity’ means you are of sound mind, understand what it means to make a will, understand who your expected beneficiaries are and know what assets you hold. If you do not have testamentary capacity, an application can be made to the Supreme Court of Tasmania (with the leave of the Court) or the Guardianship and Administration Board (the Board) to make a will on your behalf in specific terms approved by the Supreme Court or the Board.
When can a minor make a Will?
Usually a minor (a person under the age of 18) cannot make a valid will. However, they can if they are married, or they can make a will “in contemplation” of marriage. The minor must also have testamentary capacity to make a will. The Wills Act 2008 provides that being a minor of itself does not cause a person to lack testamentary capacity. If they lack testamentary capacity, an application can be made to the Supreme Court or the Board for a will to be made on the minor’s behalf. Alternatively, if a minor cannot make a valid will at all (i.e. they are not married or cannot make a will in contemplation of marriage), they or a person on their behalf can apply to the Supreme Court for an order that a will be made on their behalf.
The requirements for a valid Will
In addition to the above, the following requirements must be satisfied to make a valid will:
If you made the will, then you have to sign it or have someone else sign it in your presence at your direction and on your behalf.
You must have at least two witnesses present at the time the above signature is made. If you have more than two witnesses, you should also make sure that at least two of those witnesses are not beneficiaries named in the will, or else distributions to the witness who is a beneficiary may be void. The Supreme Court can order that this rule does not apply. A person who cannot watch you sign the will due to blindness cannot be a witness.
At least two of the witnesses who watch you sign the will must also sign it.
Dying without a valid Will
If you do not leave a valid will when you die, you die an ‘intestate’. Your assets will be distributed amongst your surviving relatives or, if you have no surviving relatives, to the Tasmanian government. The Intestacy Act 2010 sets out how your assets are distributed if you are an intestate. However, if you attempt to make a valid will but do not satisfy all of the above requirements, the Supreme Court can order that a document is your will after your death, provided it is satisfied beyond reasonable doubt that you intended for that document to be your will.
It is up to you to decide who to name as a beneficiary in your will. However, if you do not nominate certain kinds of relatives in your will (e.g. your spouse or your child) as a beneficiary, they may apply to the Supreme Court of Tasmania for an order that a part of your assets be set aside for their maintenance. The rules for how such an order is made, and who can apply for such an order, are in the Testator’s Family Maintenance Act 1912.
What if I made a Will in another State or Territory?
Tasmania will recognise your will as a valid will, provided its execution is consistent with the law in force in one of the following:
- The place where execution occurred.
- Your domicile or residence, either when the will was executed or at your death.
- The place where you are a national, either when the will was executed or at your death.