Who can make or change a will?

Date: Jun 02, 2011

There are a number of common misconceptions about who can make or change a will.

While many people may be under the mistaken impression that a will is not valid due to the willmaker's age or mental capacity, it is important to note that very few wills are set aside on these grounds.

In fact, any individual can make or change a will at any time, as long as they can demonstrate an understanding of a few key points.

First, they need to be able to recognise what a will is - in short, a document detailing what will happen to their property if they die.

They also need to be aware of any moral obligations they have to provide for a person - such as a child or surviving spouse - and understand in general terms the type and amount of property they have.

A person is not prevented from having testamentary capacity to make or change a will on the basis of age alone. In fact, a person does not even have to be able to read or write to have a valid will, as long as provisions have been made so they understand exactly what the document entails.

Of course, a wills and estates lawyer is always a useful individual to consult if you are planning to make a will - it is very hard to dispute a document that was drawn up by a competent legal professional.

A trustworthy wills and estates lawyer will take the appropriate instructions from the willmaker and will ensure they are satisfied that this individual has the testamentary capacity to make a will.

In the event a person is found to not have the legal capacity to make a will, an application can be made to the Supreme Court to draw up a will on behalf of the individual.

If this occurs, the court must assess whether the person does not have the legal capacity to draw up such a document and - if so - whether a will drawn up by another party would reflect what the individual would want if they did have this capacity.

While making a will is not necessarily a difficult process, a qualified and experienced wills and estates lawyer can help you to prepare and complete a document that suits your needs.

And in the event you feel you may have a Family Provisions Act claim - for example if you are defending a will or if you think you have been left out of a will - an experienced and trusted wills and estates lawyer can help you consider all your options.