A person is not prohibited frommaking a Will even if they are subject to an order under the Guardianship and Administration Act 1990 (WA).[1] The guardianship division of the State Administrative Tribunal (“SAT”) is involved in a large number of family disputes over whether or not it is in the best interest for a person to remain in their home or to be placed into residential care. These kinds of domestic disputes are often the source of family rifts. One side of the family preferring the former solution and the other side preferring the latter. A person under guardianship often has limited insight into the issues. Naturally, if the person under guardianship wants to stay at home then the child advocating for residential care is portrayed in a negative light. On many occasions, the person advocating for residential care is actually the person who has given years, or even decades, worth of assistance to the person under guardianship.

 

In Levin v Levin (644/09) [2011] ZASCA 114 (03 June 2011), a case heard by the South African Court of Appeal, a wealthy testatrix made at least 19 Wills during her lifetime. The last two Wills were subject to solemn form proceedings in respect of a challenge to the testamentary capacity of the deceased. The facts were that the testatrix “frequently changed her will on a whim as she would increase or decrease bequests and even exclude beneficiaries altogether depending on who pleased or displeased her at the time.[2] Her justification for changing the Will was a displeasure over losing control of the management of her finances.

 

Craig Gregson LLM TEP

Senior Associate

Havilah Legal

To learn more about the process of writing a Will, contact our experienced Will lawyers in Perth.

 

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  1. At p56-57.