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Valid wills

For a will to be valid it must [Wills Act 1936 (SA) s 8]:

  • be in writing
  • be signed at the end by the testator or by some other person in the presence, and at the direction, of the testator
  • appear from the will that the testator intended to give effect to the will by signing it
  • be signed by the testator or the signature must be acknowledged by the testator in the presence of two or more witnesses present at the same time
  • then signed by witnesses who sign their names as witnesses to the will in the presence of the testator but not necessarily in the presence of each other.

If these requirements are not met, the estate may be dealt with as if there were no will (see If there is no will), unless the court orders otherwise. These requirements do not apply to privileged testators, (that is, members of the defence forces in actual military service, or sailors at sea). Privileged testators may make nuncupative (oral) instead of written wills [Wills Act 1936 (SA) s 11].

Waiving Formalities

If a will fails to meet all the above requirements, the court may still consider the will to be valid. If the court is satisfied that the document expresses the testamentary intentions of the deceased, it can admit that document to probate as a will of the deceased person [Wills Act 1936 (SA) s 12(2)]. An application will need to be made to the court. Applications may be quite expensive and not all are successful, so it is important that all the formal requirements are met when making a will.

If a probate action has not already been commenced, an application to waive formalities is made to the court by way of a summons to the Registrar using Form 34A (now CourtSA Originating Application Form) under the Supreme Court Probate Rules 2015 (SA). The summons must be supported by an affidavit setting out the facts upon which the applicant relies. In addition, it must include the written consents to the application of all persons (not under a disability) who may be prejudiced by the admission of the document to proof [r 64.01].

Foreign Wills

Generally, a will made overseas that is valid according to the law of the country where the will was made, will be accepted in South Australia, even if it is not valid according to South Australian law. In other words, if a migrant's will is valid in the migrant's old country, it will be granted probate in South Australia [Wills Act 1936 (SA) ss 13,14].

A will need not to be in English in order to be accepted in South Australia. However, if it is not in English, it must be translated, and an affidavit of translation must be made, before probate will be granted. It is simpler if the will is written in English and translated to the testator.

Valid wills  :  Last Revised: Tue Jan 7th 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.