First, a definition: a will is a document by which the will-maker directs the manner in which his or her property shall be dealt with upon and after his or her death. There are a number of formalities that are required in order for a document to be a valid will—
- it must be in writing;
- it must be signed by the will-maker; and
- the will-maker’s signature must be witnessed or acknowledged by two people present together.
A will can only direct the manner of disposal of property that the will-maker owns at his or her death. A will cannot direct the manner of disposal of an interest in land held as a joint tenant; that interest passes to the other joint tenant no matter what the will states. Nor can it effect the disposal of an interest in a joint bank account, or superannuation entitlements, or life insurance nominations. It cannot effect the disposal of any property held in a trust (including what is commonly known as a family trust).
Again, a will can effect a disposal only of property which the will-maker actually owns.
A will-maker is, in general, free to dispose of property by will in whatever manner he or she may wish, however frivolous and capricious. One notable Canadian will-maker left all of his estate to whichever Toronto woman had the most children in the 10 years following his death. (It was shared by four women who each had nine children in that period.)
There are limits, however, and a will-maker is expected to make adequate provision for the support and maintenance of certain relatives. That expectation is protected by legislation, the Inheritance (Family Provision) Act 1972 (SA), which provides that certain persons can apply to the Supreme Court (after the death of the will-maker) to have the terms of a will varied so as to make greater provision for themselves.
If a will is invalid, or has been revoked, then the property of the purported will-maker will be dealt with according the rules of intestacy. They are quite complex and beyond the scope of this article. The consequence is that the property may be distributed in a manner quite contrary to what the deceased actually intended. Invalidity may arise through a lack of formality of the document, uncertainty and poor drafting, unforeseen events and many other factors.
Revocation will generally arise from marriage (remarriage) or from an attempt to draft another will (even if it is itself invalid), and many other factors.