A person can make a will if they are at least 18 years of age and have legal capacity [Succession Act 2023 (SA) ss 5, 7]. Legal capacity, or testamentary capacity, means that they understand the nature and effect of making a will and can communicate their wishes.

A court or tribunal may limit a person's will-making capacity, such as where a protection order is made under the Aged and Infirm Persons Property Act 1940 (SA) or where directions are made in relation to a protected person under s 56 of the Guardianship and Administration Act 1993 (SA).

A question may be raised about a person's legal capacity to make a will if they are of advanced age or if they have been diagnosed with an illness or injury that affects their communication or cognitive ability. Where there is any doubt about a person's legal capacity, great care must be taken when making a will as it may be contested (challenged). It is best to have the will prepared professionally by a lawyer. It may also be useful to ask a doctor or a specialist to assess and record the person's cognitive ability at the time they make their will.

People younger than 18 can make a will if they are or have been married or with the permission of the Supreme Court [Succession Act 2023 (SA) ss 5, 6]. The Supreme Court may also authorise a will or an alteration where a person lacks legal capacity [Succession Act 2023 (SA) s 7].

While it is not required, the best way to make a will is to see a private lawyer with experience and expertise in preparing wills.

A private lawyer can

Paying a private lawyer to prepare a will offers the best protection against someone successfully contesting (challenging) a person's will after they have died.

If the formal requirements of a will are not met, a will may be unclear or may be found to be invalid. This may result in expensive and lengthy court proceedings to determine the true wishes of the deceased person.

The Public Trustee can prepare a will for free for certain customers. This includes eligible concession holders and persons under administration or guardianship orders.

The Public Trustee will only prepare a will for eligible customers if it is named as executor. It will charge a percentage of the estate when it administers the estate.

There are also other trustee companies that may make wills free of charge or charge a fee. All trustees may, if they wish, charge a commission to administer the estate if appointed executor.

A lawyer's fees will depend on how long it takes to prepare the will. The more complex a will is, the more expensive it will be.

When choosing whether to use a lawyer, who charges at the time of making the will, or a trustee company, which may have no charge for making the will, but charge a commission for the administration of the estate, it is worth being aware of the real cost of the commission method.

A will should be kept in a safe and secure place. It is wise to make a photocopy of the will as the original may become lost. A note should be made on the copy of where the will is kept.

It is wise to let the executor of the will know where it is located. Banks and insurance companies can hold wills, though they may charge a fee. Trustee companies will usually only hold a will if they are named as an executor. Lawyers will usually hold a will if they have prepared it for a client, even if they are not named as executors.

Wills Register

The Law Society of South Australia provides a secure centralised register of the location of South Australian wills. This service is available for lawyers to register wills and to search for missing wills. Although lawyers are encouraged to register their clients’ wills, participation in the register is voluntary.

Lawyers may publish their client's name, date of birth, and the date of their will, without breaching confidentiality, where:

A will does not need to use special words. All it needs to say is that it is the will of the testator, who wants their property to be distributed in a certain way. It is most important that the will be worded in clear, unambiguous language.

However, there is one clause that should always be inserted in a will. This is the attestation clause (the part of the will that deals with the witnessing of the testator's signature). If there is no attestation clause, an affidavit made by at least one witness, giving details of how the will was signed and witnessed, will be needed when the application for probate is made after the testator's death. If no witness is conveniently available, the affidavit may be by someone else who was present when the will was executed [Uniform Civil Rules 2020 (SA) rule 356.6]. Sometimes the witnesses and those who were present when the will was executed are dead or have moved, and so the signature cannot be proved. In either case, there will be great difficulties in obtaining the grant of probate if there is no attestation clause.

An example of a standard attestation clause:

The testator signed in the presence of both of us being present at the same time, and we attested her/his/their signature in the presence of her/him/them and of each other.

Any will which is made for a testator who is blind, unable to write (because of illiteracy or disability), or unable to understand English, needs to be dealt with most carefully. Professional assistance is recommended in these cases.

These may be dealt with in the following ways:

An example of attestation clause used when a will is read to a testator who is blind

This will having been first read over to the testator who is blind by me the undersigned (name) in the presence of me the undersigned (name) when the testator appeared thoroughly to understand it and to approve of its contents was signed by the testator as her/his/their last will and testament in our joint presence and by us in her/his/their presence.

An example of an attestation clause used when a will is read to a testator who cannot write

IN WITNESS whereof I have hereunto set my hand this day of 20..

HIS/HER/THEIR A X B MARK

SIGNED by the above-named AB by making his/her/their mark as and for his/her/their last will and testament after it had been read over to him/her/them and he/she/they appeared thoroughly to understand it and to approve of its contents in our joint presence and by us in his/her/their presence.

(Note that if the person cannot write because of physical incapacity, then the witness should indicate this with appropriate detail on the will. It is best to get professional assistance in these cases.)

An example of an attestation clause used when a will is translated by a witness to a testator who cannot read or understand English

IN WITNESS whereof I have hereunto set my hand this day of 20..

........................................................................................................................

SIGNED by the testator as and for her/his/their last will and testament after it had been read over to her/him/them in English and (state language) by me the undersigned (name) in the presence of me the undersigned (name) when the testator appeared thoroughly to understand it and to approve of its contents in our joint presence and by us in her/his/their presence.

Subject to the provisions of the Transplantation and Anatomy Act 1983 (SA), the executor is responsible for the disposal of the deceased's body. A testator may have specific wishes in this regard, for example, to be cremated and have their ashes spread over the sea from a particular place. These specific wishes can be included in the testator's will.

Usually, both parents are jointly responsible for the care of their children under the age of 18, unless a court order changes parental responsibility. This means that if one parent dies, the surviving parent would assume sole responsibility for the children. There is no need for any direction in the will.

Where a court makes a parenting order, it stays in force until the court changes it, or the child or a guardian dies.

A parent or guardian with sole responsibility for the long term care, welfare and development of a child (because of a court order, or because the other parent is not named on the birth certificate, or has died) can state in their will who will care for their children after their death.

Whether or not there is a direction in the will, if the carer parent dies and the family cannot agree about who should care for the child, someone may need to apply to the Federal Circuit and Family Court to determine who should care for the child. For more information, see Arrangements for children.

It is not uncommon for spouses or domestic partners to die at the same time or within a short time of each other. Before 1 January 2025, there was no codified presumption under South Australian law to provide certainty as to the legal effect of such deaths. Where there was no proof of who died first, it would sometimes be necessary to apply to the court for guidance as to the distribution of the estates.

Because of this legal uncertainty, testators often provided for this situation in their will by including a clause that set out the period for which their spouse or partner must outlive them in order to be considered to have "survived" them (usually 28 days, consistent with the previous law for dying intestate [but see Succession Act 2023 (SA) s 101(4) which has increased this to 30 days]). A clause would also be included that clarified that if 2 spouses or partners died together or the order of their deaths was uncertain, the deaths were to be taken to have occurred in order of seniority (in other words, the older of the 2 would be taken to have died first).

From 1 January 2025, s 126 of the Succession Act explicitly provides for this, clarifying that when 2 persons die in circumstances where it is uncertain who died first, the oldest will be taken to have died first, and the younger will be taken to have survived the elder by a period of 1 day.

New s 127 of the Succession Act 2023 (SA) also clarifies that where 2 or more persons who jointly own property die in an order that is uncertain, the jointly-owned property will pass as if the joint owners held the property as tenants in common in equal shares.

The commencement of a registered relationship under the Relationships Register Act 2016 (SA) or marriage under the Marriage Act 1961 (Cth) automatically revokes a will unless the will was made in contemplation of the registered relationship or marriage and this was stated in the will [Succession Act 2023 (SA) s 18].

In contemplation of the registered relationship or marriage means that the testator was planning to commence the registered relationship or marry at the time of making the will, and the will is made with this in mind.

The end of a registered relationship or marriage revokes any bequest to the former spouse or partner or appointment of the former spouse or partner as executor, unless it is clear from the will that the end of the registered relationship or marriage is to have no effect [s 19]. The Act defines when a registered relationship or marriage is taken to have ended [s 3(2)].

It is best to seek legal advice about a will after commencing a registered relationship, marriage or separation.

A will should be reviewed every few years to check it continues to meet the needs and circumstances of the testator. Some life events automatically revoke a will – see Registered relationships, marriage and separation.

A will should also be reviewed and updated as needed following significant life events such as a new or ended relationship, the birth or adoption of children, a change in circumstances of an executor or beneficiary (including relocation or death), a significant change in assets (such as buying or selling a house), and retirement.

A will that has been fully executed (signed and witnessed) cannot be altered, either by crossing out or writing in new clauses, unless the changes are executed in the same manner as a will [Succession Act 2023 (SA) s 16].

Small changes to a will may be made by making a codicil. A codicil is a separate document that adds to or changes an existing will.

A codicil must meet the formal requirements of a will (see Valid wills) and should refer to the original will and the date it was made. It need not be witnessed by the same people who witnessed the original will, but it must have a properly signed attestation clause.

Because of the formal requirements to make a codicil, often the easiest and simplest way to update a will is to make a new one. Making a new will automatically revokes any previous or existing wills made by the testator. It also eliminates the risk that a codicil may become separated from a will.

A testator who wants to replace, or stop the operation of, an existing will should be sure that the existing will is revoked. A later will may revoke an earlier will by implication, that is, when the terms of the later will contradict the terms of the earlier will [see Succession Act 2023 (SA) s 17(1)(c)]. However, this can lead to uncertainty, and so the inclusion of a revocation clause is preferable [s 17(1)(d)].

A will can be revoked by physically destroying it (such as by tearing it or burning it), provided it is with the intention of revoking the will. This must be done by the testator or the testator can ask someone else to do it [s 17(1)(e)].

Where a will has been revoked through:

a person will die intestate unless a new will is made.

When a testator destroys their will with the intention of revoking it, that person does not have a will. The destruction does not mean an earlier will becomes the valid will of that person.

An earlier will can become the valid will if the testator re-executes it, following the formal requirements of making a valid will [Succession Act 2023 (SA) s 21]. This is known as republishing or reviving a will. A will that is revoked and later revived is taken to have been executed on the day it is revived [s 21(4)].

If all beneficiaries under a will are adults with legal capacity and reach an agreement, a will may be altered after the testator's death by a deed of family arrangement.

A deed of family arrangement is a document that outlines an agreement between parties with an interest in an inheritance. This can include beneficiaries, executors, trustees and even creditors of the estate. It is used either where all parties agree that they would like to alter the terms of the will (for whatever reason), or where there is a disagreement over a will and the disputing parties are able to reach a compromise without going to court.

A deed of family arrangement may have stamp duty and capital gains tax implications. Professional advice should be sought by all parties before finalising a deed of family arrangement.

A deed of family arrangement cannot be used:

In any of the above cases, a court order will be needed to make the deed of family arrangement enforceable at law.

Someone with a legal interest in an estate may argue that a deceased person's will is invalid because:

If a disputed will is eventually approved by the Court, a grant in solemn form is made.

The Supreme Court, not the Probate Registry, interprets wills. The executor, or a party interested in the estate, may ask the Court to decide what the deceased meant by the will. For example, the deceased may have left something to "my grandson George" and there may be more than one grandson named George.

If the Court accepts that a will does not accurately reflect the wishes and intentions of a deceased testator, the Court may order that the will be rectified (fixed) to properly reflect the testator's intentions [Succession Act 2023 (SA) s 22(1)].

An application for rectification of a will must be made within 6 months after the grant of probate or administration [s 22(2)]. This time limit may be extended provided an application is made before the final distribution of the estate [s 22(3), (5)].

The Court can only interpret the words in the context in which they appear, according to their usual meaning. No outside evidence may be used in interpreting the will. For example, if the will says "bank account", the Court cannot accept evidence that the deceased meant "building society account". The only exception to this is when the words in the will do not make sense in the circumstances. The words "bank account" have a clear meaning, unless the deceased had no bank accounts. In these circumstances, the Court may refer to evidence that the deceased always, for example, called the building society the "bank".

Unless the Court is able to exercise its power to rectify a will [Succession Act 2023 (SA) s 22], the Court will not accept evidence about the direct intention of the deceased. A statement by the deceased to a beneficiary that they would be receiving a certain gift would not be used by the Court in interpreting the will.

In South Australia, the law recognises freedom of testation: each person is free to leave their estate to whomever they choose. This can sometimes be considered unfair where there is a moral duty to provide for certain family members. For example, a will may be considered unfair where a deceased leaves their estate to a particular organisation and ignores the needs of their spouse, child or a dependant.

Accordingly, the Supreme Court may, on application, make a family provision order if satisfied that a deceased's will does not adequately provide for a person's proper maintenance, education or advancement [Succession Act 2023 (SA) s 116(1)]. A family provision order may be made whether or not a deceased person died with a valid will (see If there is no will). If a deceased person had a will, a family provision order will change how their estate is distributed.

The following people may apply to the Supreme Court for family provision [s 115(1)]:

In relation to a deceased person, a domestic partner is someone who was in a registered relationship with the deceased under the Relationships Register Act 2016 (SA) at the date of death, or someone declared to have been the domestic partner of the deceased under the Family Relationships Act 1975 (SA) at the date of death [Succession Act 2023 (SA) s 3]. For more information, see What is a domestic partnership?.

The classes of people who may apply for family provision changed on 1 January 2025 when the Succession Act 2023 (SA) repealed and replaced the Inheritance (Family Provision) Act 1972 (SA). Most significantly, new eligibility criteria apply to step-children, grandchildren, parents and siblings of the deceased. This is intended to limit claims for family provision to only those family members who can demonstrate genuine need.

An application for family provision must be made within 6 months after the grant of probate or letters of administration [Succession Act 2023 (SA) s 118(1)]. The Court may extend this time limit provided the estate has not been completely administered [s 118(2)].

How the Court decides

Not everyone entitled to apply under the Succession Act will obtain a family provision order. The test applied by the Court is whether the deceased failed to provide adequately for the applicant's proper maintenance, education or advancement in life.

From 1 January 2025, the law codifies a list of factors the Court must consider when deciding whether to make a family provision order [s 116(2)]. The primary consideration of the Court is the wishes of the deceased [s 116(2)(a)]. The Court must also consider [s 116(2)]:

A challenge will not succeed on the ground that the will was unfair or unjust in its distribution when in fact the will does provide adequately for the applicant's maintenance. For example, where a person leaves their large business to a football club and their house and a significant sum of money to their spouse, their spouse may have difficulty establishing inadequate provision, even though it is perhaps unjust that a football club will receive a larger sum.

Over the years, courts have created certain guidelines as to what amounts to adequate provision for proper maintenance. The main standard is that the Court must put itself in the position of the deceased and consider the case as a wise and just, rather than a fond and foolish, family member. Important considerations include:

A person who applies to the Supreme Court to challenge a will or seek family provision will usually need to pay a court fee. This can be waived (not enforced) in some circumstances. If the fee is charged, it may or may not be paid back from the estate when the court matter is finished. Check the Court website for a list of current fees.

The Court has discretion to order that legal costs incurred by the applicant or other parties be paid out of the estate or by individual parties [Succession Act 2023 (SA) s 119(8)]. Parties may need to cover their own costs and, if their claim fails, they may be ordered to pay the legal costs of other parties.

To that end, the Supreme Court may order an applicant to pay an amount to the Court (known as security for costs) if the Court believes their application for a family provision order may lack merit or if the applicant will not negotiate with other family members [s 117].