A testator is someone who writes and executes a valid Will.
The answer to what is a testator is more straightforward today because it is an all-inclusive term and is used alike for both men and women. Previously, ‘testatrix’ is the term that was used to define women who created Wills, and ‘testator’ was used solely for men. However, testatrix has become outdated now.
What is noteworthy is that as the creator of the Will, he/she is often considered to be the most important person in the process of finalising a Will.
The validity of the Will is determined by taking into consideration specific requirements. In Australia, these requirements can vary from state to state. To understand what is a testator, it is essential to know the requirements that determine the validity of the Will, and the responsibilities of the testator.
The Important Requirements
- Legal Age.
For the Will to be considered valid, the testator must be over 18 years of age. In certain occasions, the Court may waive the age requirement. This happens when the Court deems that the child is fit to understand the effect and purpose of a Will.
If a minor child has substantial assets, including those received from occupation, inheritance, or compensation payments, he/she may create a valid Will.
2. Testamentary Capacity.
Through testamentary capacity, the Court checks the legal competence of the testator, in his/her ability to create a Will. This is needed to check their mental ability and ensure that they are of sound mind.
Knowing what is a testator is understanding the legal definition of having a “sound mind”:-
- The Court needs to find that the testator comprehends the effects and nature of the Will.
- At the time of signing the Will, the testator is supposed to understand the extent of their property, and
- Understand who should or should not benefit from the Will.
- Not suffering from any disorder of the mind that can affect their capacity to make rational decisions.
Notably, if a person is suffering from delusions, but has the ability to make a Will during ‘lucid moments’, the Will can be accepted as valid.
In other words, having a mental illness does not in itself invalidate the Will. For instance, a person suffering from dementia may have episodic delusions. Since the delusions are not persistent, such cases can be exceptions.
In some circumstances, the Court may find a reason to be suspicious about the terms of the Will, and may not admit the Will to probate until it is satisfied that the testator understands the terms of the Will.
Such circumstances often arise when the testator was living alone, elderly, or not in regular contact with family members.
There are several responsibilities of a testator, and it is very important to understand these to have a clear idea of what is a testator.
The testator must clearly state their intent to have a Will. They need to make sure that the Will is made in writing. After writing the Will, they also need to ensure that they sign the Will.
An important point to remember is that the testator needs two witnesses, especially to demonstrate the significance and finality of the Will.
The signature on the Will must be made by the testator only in the presence of two witnesses, who are not named in the Will. The presence of impartial witnesses is essential.
In cases where the testator is suffering from some intellectual disability, it is advisable to ask a psychologist to act as one of the witnesses. The psychologist can vouch for the testamentary capacity of the testator in question.
The most important responsibility is to provide clear information to the court about what they must do with your estate. The instructions given by the Will must be made very clear, to avoid any confusion after the death of the testator. Adding to this point, it is also essential that the testator keeps the instructions as simple as possible.
It is the duty of the testator to nominate one or more executors who will be responsible for handling their estate. Apart from naming executors, the testators must also provide detailed instructions to them.
The testator must state their intent for the disposition of property. If any provision stated in the Will is out-of-the-ordinary, the testator must provide sufficient information on the same, so as to avoid inconveniencing the executors and beneficiaries.
In summary, the most important aspect to understanding what is a testator is understanding the responsibilities of a testator.
What happens if you don’t make a valid will?
If you want to know what is a testator, it is likely that you or someone you know wants to make a valid Will. However, in Australia, many people don’t draft a Will.
In situations where a valid Will has not been made before a person dies, they are declared intestate. In such cases, intestacy rules will apply. Following the rules of intestacy, the Court decides whom the assets should be distributed to by taking into consideration factors such as who was closest to the deceased, and who was financially dependent on the deceased (most commonly includes spouse and children).
Even if one has a valid Will, in certain circumstances, the Will might not include provisions for all assets. In such cases, after the testator dies, he/she is said to be partially intestate. This might happen when a Will was made a long time ago and had never been revised.
Why Testators Need Legal Advice
Now that you have an idea about what is a testator, you need to consider why it is important to seek legal guidance
It is highly advisable that testators seek the guidance of solicitors when preparing a Will. The process of making a Will is not very straightforward, simply because of the various requirements that are needed to be fulfilled.
Our lawyers here at JB Solicitors can help testators to draw up valid Wills by thoroughly checking all their assets before drawing up a Will and assisting with all formal requirements. With the support of our lawyers, you can ensure that your Will has the implications as intended by you.
Secondly, any errors in the Will can cause significant issues after the death of the testator. This can also lead to the testator’s family incurring legal costs. To avoid such inconveniences, it is ideal to seek advice from solicitors.
Our fixed pricing structure ensures transparency throughout our cases. Our expert family lawyers will ensure there are no delays in getting your Will validated.
If you are a testator looking to draft a valid Will, contact JB Solicitors today.