Making a Will in WA: a Will is a legal document which stipulates how your assets are to be disposed of when you die. The person making the Will (you) is known as the testator, and the person who you appoint in your Will to distribute your assets is known as your “executor”. After you die, your executor becomes your personal representative and must obtain a Grant of Probate, which is a seal from the Probate Registrar of the Supreme Court of Western Australia confirming the validity of the Will. The Grant of Probate enables the executor to distribute the estate, and will almost always need to be produced by the executor when dealing with banks or other financial institutions, and Landgate, the land titles office.
What is the law regarding making a Will in WA?
The Wills Act 1970 sets out the formal requirements for making a Will, the rules of construction (how they are to be interpreted), when they can be revoked (annulled), and other matters relating to Wills. Marriage will revoke a Will, unless the testator has specified that the Will is made in contemplation of marriage. Divorce will also revoke a Will.
One of the main formal requirements for making a Will in WA is that there be two witnesses present at the same time to witness the signature of the testator. As there are many formal requirements which are checked by the Probate Registrar at the time the executor applies for a Grant of Probate, it is recommended that you seek the assistance of a lawyer when preparing your Will. In some circumstances, Wills that do not meet the formal requirements may be approved for a Grant of Probate under Part X of the Wills Act 1970, which is that part of the Act regarding informal Wills.
Common mistakes made when people prepare a Will themselves
Many people prepare their own Wills because they do not want to incur the expense of instructing a lawyer to prepare one. One of the pitfalls of making your own Will is that you may make a mistake which will either make it difficult for the executor to obtain a Grant of Probate, or will make it difficult for the executor to administer the estate. A common mistake is where the testator fails to distribute all of the Estate. This is known as a “partial intestacy”, and that part of the estate which is not distributed under the Will must be distributed in accordance with section 14 of the Administration Act 1903.
The role of the executor
As noted above, the executor is the legal personal representative of the deceased person and is obliged to obtain a Grant of Probate before distributing the estate. The process for obtaining Probate in Western Australia is found in the Administration Act 1903 and the Non-Contentious Probate Rules 1967. If you would like further information on the procedure and costs of obtaining a Grant of Probate, go to the Supreme Court Probate Registry website.
The legal obligations of an executor are also set out in the Administration Act 1903. As the legal representative of the estate, the executor is a trustee and holds the estate on trust to be distributed in accordance with the terms of the Will. As such, executors are also subject to the Trustees Act 1962. Trustees – and therefore executors – also have obligations under the common law and at equity. They have fiduciary duties with respect to the beneficiaries of the estate, for example, a due to act with due care and diligence.
A testamentary trust is a trust which you write into your Will. You can stipulate which part of your estate you wish to put into the testamentary trust, which is to be held on trust by the trustee (most usually the executor) on behalf of the nominated beneficiary or beneficiaries. Testamentary trusts are useful for situations where an asset cannot be transferred to a beneficiary directly, for example, when you die leaving a child under the age of 18, or if you wish to have an asset invested and therefore generating income which may be distributed to a beneficiary over an extended period of time.
What happens after I die, if I don’t leave a Will?
If you die without making a Will in WA or without a valid Will then you die “intestate”. If you die without leaving a valid Will then your assets pass to your partner and/or your closest surviving relatives (after payment of creditors), in the proportions stipulated under section 14 of the Administration Act 1903. Most usually the persons who are entitled to a distribution under section 14 are also those people who may act as your legal personal representative when you die. This person is known as the “administrator” and must apply for a Grant of Letters of Administration from the Probate Registry of the Supreme Court of WA.