March 27, 2012

Make sure the legal formalities are followed when you make any change to your legal will or uncertainty and unnecessary expense can result. Recently the Supreme Court was faced with a situation in which a legal will had been made and was held by solicitors, but the client later wrote to them saying that she had made a new will and the one they were holding was cancelled.

The problem was, despite exhaustive enquiries and searching no-one could find any record of another will. For a will to be revoked in this way the document must be witnessed just the same as the will, and as that was not the case the Court had to be satisfied by evidence that the note the lawyers received was genuine and proved that the deceased had revoked the earlier will. The Court concluded that this was the case, which meant that there was no will at all!

The ways in which a will can be revoked are:

1. By marriage or termination of marriage;

2. Making another will that is executed in the manner set out by the Wills Act;

3. By a written declaration of an intention to revoke the will that is executed in the same manner as a will is required to be executed;

4. Destroying the will by the person who made it, or by some other person at their direction and in their presence.

Don’t leave any doubt about your intentions. Whether you want to make a will, change a will or revoke a will, it is important to get assistance from an qualified professional. Experienced wills and estates lawyer at Websters Lawyers in Adelaide can help you to make sure your intentions are set out clearly and legally. Websters Lawyers can also assist executors responsible for administering an estate, or advise on inheritance claims for those not adequately provided for in a will. We also offer a wills storage facility to ensure that your will is not lost, damaged or misplaced.

Debondt v Marshall & Anor [2012] SASC 40