Under s 8 of the Succession Act 2023 (SA), a will generally must be in writing; be signed by the testator with the intention of giving effect to the will; and be signed or acknowledged in the presence of at least two witnesses present at the same time, who then witness the will in accordance with the Act.
Failure to follow the formalities can create significant additional cost after death.
A defective document is not necessarily the end of the matter.
Under s 11(2) of the Succession Act 2023, the Supreme Court may in appropriate circumstances admit a document to probate despite non-compliance with the usual formalities if the Court is satisfied that it expresses the deceased’s testamentary intentions and was intended to constitute the deceased’s will. Legal Services Commission SA
This is commonly referred to as an informal will application.
A will-maker must have testamentary capacity.
The traditional test derives from Banks v Goodfellow (1870) LR 5 QB 549 and considers whether the person understands the nature and effect of making a will, the general extent of their property and the claims of people who might reasonably expect to benefit.
The South Australian Supreme Court considered these principles extensively in Roche v Roche [2017] SASC 8. The case demonstrates that a medical diagnosis such as dementia does not automatically determine capacity; the issue is the person’s actual testamentary understanding at the relevant time. CaseChat
Generally, yes.
Under s 18 of the Succession Act 2023, marriage or commencement of a registered relationship generally revokes an earlier will, unless the will was made in contemplation of that marriage or relationship as contemplated by the legislation. Courts of South Australia
A will should therefore be reviewed when marriage is planned.
Separation alone does not generally remove a former partner from an existing will.
However, under s 19 of the Succession Act 2023, ending a marriage or registered relationship generally revokes gifts to the former spouse or partner and certain appointments of that person, unless the will shows a contrary intention. Courts of South Australia
It is safer to review estate planning at the time of separation rather than waiting for the divorce.
No.
Some assets may pass outside the estate, depending on their ownership structure.
Examples can include jointly owned assets passing by survivorship, superannuation death benefits, life insurance proceeds and assets owned by a family trust.
This is why estate planning can involve more than simply preparing a will.
Last updated: September 2026
Jurisdiction: South Australia, Australia
Disclaimer: This article provides general information only and does not constitute legal, financial or tax advice. The law may change and its application depends on individual circumstances. You should obtain professional advice before acting on the information contained in this article.