What makes a will valid in South Australia
Three things make a will valid in SA: the right form, the right signing, and the right capacity. Here's each in detail.
A will is valid in South Australia if it's in writing, signed by the testator in the presence of two adult witnesses, and the witnesses sign in each other's presence and the testator's. That's the formal test – but validity also depends on capacity and the absence of undue influence.
The three validity requirements
1. Form: in writing and signed
The will must be in writing – handwritten, typed, or printed. It must include the testator's signature (or someone signing on their behalf at their direction). Informal video or audio wills are not valid in SA without a specific court order under the dispensing power.
2. Execution: witnessed correctly
Two adult witnesses must be present at the same time when the testator signs. The witnesses must then sign the will in the presence of the testator and each other. One witness signing, then leaving, then the second witness signing is not valid.
3. Capacity: understanding at the time
The testator must have had capacity at the time of signing. Capacity requires understanding the nature of the document, the extent of the assets, the claims of people who might expect to benefit, and the absence of any delusion affecting the disposition.
Who can't be a witness
Witnesses must be adults and should not be beneficiaries, spouses of beneficiaries, or people who might otherwise benefit under the will. A witness who is also a beneficiary loses their gift (though the will itself remains valid).
The dispensing power
South Australia has a dispensing power that lets a court admit a non-compliant document as a will if the court is satisfied the deceased intended it as their will. This is a safety net, not a plan – dispensing orders are expensive and stressful.
Validity isn't the same as being effective
A will can be formally valid but still leave beneficiaries exposed. Validity means the will can be admitted to probate. Effectiveness means it actually achieves what you intended – which depends on drafting decisions far beyond form.
Summary
The formal requirements are straightforward: writing, two witnesses, simultaneous signing, capacity. Getting them right is the baseline. Drafting decisions are what actually determine whether your will does what you wanted.
Talk to Sam about your situation
If this article raised questions for your own circumstances, Sam Michele offers free 20-minute initial consultations. Learn more about our wills service, or book a consultation.
Related reading
- How to make a valid will in South Australia
- Who can witness a will in South Australia?
- Wills – our approach
Disclaimer: This article is general information only and does not constitute legal advice. Estate planning is deeply personal - every family's circumstances are different. For advice specific to your situation, please contact Rosewood Succession Solicitors.