How to Execute a Will

Preparing a Will is an important part of estate planning, but signing the document is not simply an administrative formality. A Will must be executed in accordance with the legal requirements that apply in South Australia. If those requirements are not followed, questions can arise after death about whether the document is valid, potentially making the administration of the estate more complicated, costly and time-consuming.

What Does It Mean to Execute a Will?

In this context, “executing” a Will means completing the formal process required to give effect to the document as your Will. This ordinarily involves the Willmaker (often called the testator) signing the Will in the presence of two independent witnesses, who then sign the document themselves.

The formalities serve an important purpose. Among other things, they help provide evidence that the document was intended to operate as the deceased person’s Will and that the signature appearing on it is genuine.

In South Australia, the execution of Wills is governed by the Succession Act 2023 (SA).

Requirements for Executing a Will in South Australia

For a conventional written Will to be formally executed in South Australia, the process generally involves the following requirements:

A professionally prepared Will will ordinarily be set out in a written document containing the Willmaker’s testamentary wishes.
The Will must be signed by the Willmaker, or by another person in the Willmaker’s presence and at their direction.
The Willmaker must make or acknowledge their signature in the presence of two witnesses who are present together.
Each witness must attest and sign the Will in the presence of the Willmaker.

The sequence and circumstances surrounding the signing can matter. For that reason, it is sensible to treat the execution of a Will as a formal legal process rather than simply signing the last page.

Who Can Witness a Will?

As a practical matter, independent adult witnesses are generally preferable. Using a beneficiary under the Will as a witness can create unnecessary legal issues and should ordinarily be avoided. The same applies when someone closely connected to a beneficiary witnesses the document.

When a solicitor prepares a Will, the law firm will commonly arrange for suitable witnesses and supervise the signing process. This reduces the risk of uncertainty later about whether the required formalities were observed.

Do the Witnesses Need to Read the Will?

A witness is not required to approve the contents of the Will or to know how the estate is being distributed. Their role concerns the execution of the document.

Should Every Page of a Will Be Signed?

The legally required signature should be made in the appropriate place in accordance with the applicable execution requirements. As a matter of good practice, professionally prepared Wills may also include signing or initialling conventions designed to help identify the document that was executed.

The important point is not to improvise. If a solicitor has prepared the Will, follow the signing instructions provided with it. Adding signatures, handwritten amendments or other markings in unintended places can create questions about the document later.

What if the Willmaker Cannot Physically Sign?

An inability to sign in the usual way does not necessarily prevent a person from making a Will.

South Australian law allows for another person to sign on behalf of the Willmaker in particular circumstances, provided the relevant legal requirements are satisfied. Where illness, disability or another physical limitation affects the signing process, legal advice should be obtained before execution.

Capacity is a separate issue. A person making a Will must have the requisite testamentary capacity. If there are concerns about cognitive impairment, serious illness or vulnerability, obtaining appropriate legal advice before the Will is signed can be particularly important.

Can a Will Be Valid if It Was Not Executed Correctly?

South Australian succession law provides mechanisms that may, in appropriate circumstances, allow the Court to recognise certain documents that have not been executed conventionally. Whether that can occur depends on the facts and, importantly, the evidence concerning the deceased person’s intentions.

Relying on this possibility is very different from properly executing a Will in the first place. An application concerning an informally executed document can involve additional evidence, legal expense, delay and uncertainty. Proper execution remains the far safer course.

Common Mistakes

Some execution problems are surprisingly simple. They can include signing without both witnesses being present, witnesses signing at different times, using unsuitable witnesses, failing to complete the intended signature, or making handwritten changes to the Will during or after execution of the document.

Another common problem is having a professionally drafted Will but signing it without following the solicitor’s execution instructions. Small departures from the prescribed process may have consequences that are not apparent at the time.

A Will should not be altered informally after it has been executed. If your circumstances or wishes change, speak with an estates lawyer about whether a new Will or another properly executed testamentary document is appropriate.

What Happens After a Will Is Executed?

Once the Will has been properly signed and witnessed, the original document should be stored securely.

It is also important that your executor knows that you have made a Will and can locate the original when required. This does not necessarily mean giving the original document to the executor. Many law firms offer secure storage for original Wills and other estate planning documents.

Avoid attaching papers to the original Will with staples or making notes on it after execution. Changes to the physical condition of an original Will can sometimes require explanation when probate is sought.

Your Will should also be reviewed periodically, particularly following significant changes in your personal, family or financial circumstances. Marriage, divorce or the end of certain relationships can have important consequences for an existing Will, so legal advice should be obtained when circumstances change.

Why Have a Solicitor Supervise the Execution of a Will?

A solicitor experienced in Wills and estates can ensure that the document records the Willmaker’s instructions, advise on issues that may affect the estate plan and supervise execution in accordance with South Australian law. The solicitor’s file may also provide valuable contemporaneous evidence if the Will is later challenged on issues such as capacity, knowledge and approval, or undue influence.

This can be especially important where the estate plan is complex, there are blended-family circumstances, a beneficiary is being excluded or treated differently from others, there are concerns about capacity, or the Willmaker has significant business, trust or other financial interests.

Proper execution cannot guarantee that an estate will never be disputed. It can, however, remove avoidable uncertainty about whether the Will itself was signed and witnessed correctly.