“What's your problem?” – Signing wills
I was recently reading the morning paper over my bowl of Weeties, when my attention was drawn to the “What’s Your Problem?” section of the paper, because the topic of the day was a question on wills.
As an experienced practitioner in the field of preparing wills, I thought I would jolly myself by reading the question and then affirm my expertise in this area of the law by agreeing with the answer provided by the learned (albeit anonymous) “expert” supplied by ‘The Advertiser’.
The reader posed the question as to whether or not a will which was not initialled or signed on each page could be contested. Apparently the reader’s will had not been signed on each and every page, and a friend of the reader had suggested that the will was not valid. The answer published in the newspaper was to the effect that:
- It appeared that the will in question did not conform to the necessary standards set out in the Wills Act 1936 (SA) (“Act”);
- It was possible that the will could be contested on the grounds that the formalities of executing a will had not been complied with;
- As a general rule, it is necessary that the will is signed and that the person who created the will puts their initials and the date on each of its pages, and this must be done in the presence of two witnesses who also provide their signatures;
- The purpose of marking each page of a will in this manner is to show that the pages are all part of one document;
- If this is done, it will lower the possibility of any suspicion arising that a page has been added to the will or that an existing page has been replaced at any subsequent point in time, without the knowledge of the person who made the will.
As a consequence of this advice, it was recommended that the will in question be re-drawn in order to avoid a possible dispute arising from uncertainty of the sort mentioned above.
However, rather than being content as a result of being in agreement with the answer put forward in the column, I immediately thought to myself—“that’s not right!”.
Put simply, section 8 of the Act specifies that a will must be in writing and signed by the testator (a legal term for a “willmaker”), or by a person directed by the testator, in the presence of two witnesses present at the same time, and the witnesses must sign the will in the presence of the testator.
There is no legal requirement that each page of the will be initialled or signed.
That said, I have always adopted the practice of having a testator and the witnesses sign each page of the will to avoid any suggestion or inference that unsigned pages have been inserted or replaced without the testator’s knowledge. But this practice does not have a bearing on the validity or otherwise of the will.
The answer given to the reader who posed the question was clearly wrong. Hopefully the reader did not go to the trouble of having his or her will re-drawn or re-executed, as advised in the column.
I was gratified to note that a “clarification” was published by ‘The Advertiser’ a few days later, and that The Law Society of South Australia issued a “Practitioner Alert” to the profession to alleviate any confusion caused by the article.
22 September 2017