JP in Practice‎ > ‎

12 Wills


Summary

A will is a written legal document which states how a person (the testator) wishes their assets to be distributed when they die. A will can be witnessed by any two independent people at least 18 years of age who are not beneficiaries of the will. So a witness does not need to be a JP but testators may prefer this to be the case. The testator and the two witnesses must be present together for the signing of the will. The Succession Act 1981 is the law relating to wills. The Act does not prescribe the format of the will nor state how a will is to be bound.

Check

  • the identity of the testator, must be at least 18 years of age
  • the testator has the capacity to sign the will
  • the will is made freely without undue influence
  • the will is written in a legible way, but do not read it
  • there is space at the end for the signatures and names and addresses of the witnesses

Process

  1. Confirm the identity of the testator.
  2. Establish their capacity to sign by asking suitable questions about their understanding of the will and whether they have been influenced by others in their drawing up of the will.
  3. If there is more than one page it is preferable to have them numbered.
  4. Without reading the will check for alterations, which must be initialled by the three parties, and rule out blank spaces.
  5. Make sure the date on the will is the date of signing.
  6. Each page must be signed, preferably at the bottom.
  7. The testator must sign first, then the witnesses.
  8. The last page must include the signatures, names, qualification and addresses. Use the JP Branch address. The last page can be sealed.
  9. Record in your log book the capacity of the testator and the name of the second witness.

Amendments/Codicils

Amendments and changes can be made to an existing will. Small changes can be made in the body of the will. Each change must be signed by the testator and two witnesses at the same time. They do not have to be the original witnesses to the will. Their full signature, name, address, and date should be added to the end of the will.

A large amendment and/or change may be made as an attachment to the original will and is usually called a codicil. The codicil must state that it is an amendment to the original final will and testament of the name of the testator. Each page must be signed by the testator and two witnesses, at the same time. They do not have to be the original witnesses to the will. Their signature, name, address, and date should be added to the last page of the codicil.

Notes

  • Be aware of confidentiality. A will is a private matter and it is not ethical to read it. Do not give advice as to the contents of the will.
  • There may be issues relating to the binding of a will where pages could be added or removed. This could occur with staples or pinning. The JP may make the testator aware of these issues. However if a will is stapled it is still valid and the JP should witness it if the testator wants to go ahead.
  • It is preferable, but not necessary, for all three parties to use the same pen.

References

  1. JP Handbook, Chapter 6
  2. QJA Guide, Chapter 6
  3. QJA Journal, Spring 2015, Q & A, Q1 page 12
  4. The Succession Act 1981