MAKING A WILL – THE BASICS
|The contents of this page is general information only and should not be considered to be legal advice. It does not take into account the many variations in the laws between the various Australian States. You should obtain your own legal advice applicable to your own personal situation.|
Your Will is a very important legal document. In it, you set out how, and to whom, you would like your assets, or “Estate” to be divided after your death.
Even though having a Will is very important, not many people have one. About half of the population die without a Will, which is referred to as dying “intestate”.
Although most people agree that the preparation of a Will is necessary, many simply do not allow themselves the time to do this.
This guide discusses the importance of a having a Will, what it should say, and the requirements to prepare one. Please note that this is a guide only and you should consult a solicitor as to your individual circumstances.
If you would like further information or if you have any questions, please do not hesitate to contact our principal sponsor CWPL.
Is a Will really necessary?
It is strongly recommended that you do have a Will as there are many important benefits to be gained.
If you die intestate, your estate will be divided amongst your family members in accordance with the Intestacy Rules. Of course, this may not be how you would prefer your Estate to be divided.
However in the absence of Will, your wishes are irrelevant.
Whilst dividing your estate in accordance with the Intestacy Rules may not seem terrible, not all of your loved ones will be entitled to receive a share of your Estate. Step-children will not receive anything under the rules from the Estate unless the deceased had formally adopted the step-child. They would need to make an application to court to try to receive a share of the Estate.
In your Will, you can choose who will take a share of your Estate and how much. You can also specify whether you would like to be buried or cremated, nominate a guardian to care for any of your children who are under 18 years of age and state that you wish to donate body organs.
What are the legal requirements of a Will?
A Will must usually satisfy the following requirements in order to be considered valid:
- The Will writer, or “testator”, must be aged over 18;
- The testator must have made the Will voluntarily and without pressure from another person;
- The testator must have been of sound mind. This means that the testator must have been completely aware of the nature of the document being signed and was aware of the contents of the document;
- The Will must be in writing;
- The testator must sign or acknowledge his / her signature in the presence of two (2) or more witnesses present at the same time;
- Each witness must attest and sign the Will, or acknowledge their signature, in the testator’s presence but not necessarily in the presence of the other witness.
A witness, or the spouse or civil partner of a witness, cannot also be a beneficiary of a Will. If a beneficiary, or the spouse / civil partner of a beneficiary, witnesses the testator’s signature, then although the Will remains valid, the beneficiary will not be entitled to receive their inheritance from the Will.
Once executed and witnessed, a Will is a legal document. It is not a requirement for a Will to be dated, however it is advisable that a Will includes the date on which it was signed.
A Will could be considered invalid by a court if it does not meet the legal requirements. This means that the testator may be considered to have died intestate, and his / her Estate will be divided in accordance with the Intestacy Rules rather than the terms of the Will.
What should be included in a Will?
A Will appoints a person or persons to act as the executor and trustee of the Estate. In most cases, the same person will be appointed as both the executor and trustee.
It is the executor’s role to administer the Estate. This means applying for the grant of probate, paying any taxes and debts, locating and selling assets and distributing the Estate to the beneficiaries. The trustee is legally responsible for any assets held on trust for a beneficiary.
The Will also appoints people or entities, “beneficiaries” to receive a share of the Estate. The beneficiaries may be family members, close friends, in-laws, employees or charities.
A testator can also state in his / her Will whether he / she wishes to be cremated or buried, or whether he / she would like to donate body organs. If you do wish to donate body organs it is important that you tell your next of kin and family members of your wish your next of kin will be given the final say regardless of what your Will states.
Whilst you are free to give your Estate to whoever you wish, the law ensures that you uphold your moral obligation to provide for those people who are financially dependent on you. A family member who has been left out of a Will may be able to contest the Will by making a Family Provision claim in a court. If the family member is successful, they will receive a share of the Estate even though you did not make provision for them in your Will.
A biased or insufficient Will can cause lasting heartache and disputes after your death and may lead to lengthy legal battles. It is strongly recommended that you receive legal advice about the likelihood of a potential Family Provision claim against your Estate.
Who should be appointed the executor and trustee?
There are no requirements to appoint any specific person as your executor and trustee.
You should ideally appoint someone trustworthy and responsible to be the executor. As the role can be hard work and time consuming, it is a good idea to speak to the person you wish to appoint before drafting your Will. The person appointed as executor is not obliged to take the role if they do not want it and still has the right to refuse the appointment after you die.
Usually, family members or friends will be appointed as executors.
However solicitors are often also appointed. The Public Trustee can be appointed if no one else is available.
It is recommended that you choose more than one (1) person to act as executor with the second person being a ‘back up’ executor. The ‘back up’ executor will only take on the role of executor if the first person you appoint predeceases you or is not able to or does not wish to take on the role.
Where should the original Will be kept?
Due to the serious nature of the Will, the original document should be stored in a safe place. It is a good idea to store it with your other important documents such as your birth certificate, marriage certificate or passport, so that it can easily be found after your death. It may also be a good idea to provide a close family member with a copy of your Will so that more than one (1) copy is available.
Some people place their original Will with their solicitors or with their bank. Solicitors do not usually charge a fee to keep a Will and will usually give you a copy for your records.
You do not have to tell your family members or friends that you have a Will, or what is in it, if you do not wish to. However, it is recommended that you do let some people know that you have a Will and the whereabouts of the original document.
Do not try to hide your Will as there is always the risk that the executor may not be able to find it after your death. The executor usually must have the original Will to apply for probate and administer the Estate.
If a Will cannot be found, it is presumed that the testator intentionally destroyed the Will, thereby cancelling it. This may be able to be proved otherwise, however if not, the result may be that the Estate is distributed according to the Intestacy Rules, or as set out in an earlier Will.
When storing an original Will, it should be ensured that nothing is attached to the Will and it should not be marked in any way. If care is not taken and the Will is damaged in any way, including by staple or paperclip marks, disputes may arise as to the validity of the Will.
How is a Will cancelled?
If a Will is cancelled it is said to be ‘revoked’. A Will can be revoked in a number of ways.
A Will is wholly revoked by marriage unless the Will expressly states that it is made in contemplation of the testator’s future marriage. A Will drafted in this way ensures that the Will remains valid after the marriage. You should always receive legal advice from a solicitor if you intend to prepare a Will prior to your impending marriage.
Divorce will not revoke a Will and will simply invalidate any gifts to the testator’s former spouse. This means that the testator’s former spouse will be treated as if he / she had predeceased the testator and any gifts that the former spouse was to inherit will remain in the estate. The former spouse will also no longer be able to act as executor and trustee.
A new Will revokes an old Will. Most Wills contain a paragraph at the beginning which expressly state that any earlier Wills are revoked. If a Will does not contain this paragraph and multiple Wills are found, there may be doubt as to whether the testator intended to revoke the earlier will or not. In these circumstances, a court will need to make a ruling as to which is the valid Will.
A Will can also be revoked by destroying it as long as there was also the intention that the destruction of the Will would revoke it. To ensure that a Will is revoked by destruction, it should be destroyed completely by burning it, tearing it numerous times or shredding it. This is there is no doubt that the destruction was intentional. Where a Will is accidentally destroyed, it could still be considered valid and the executor will be able to produce a copy or a draft of the Will to apply for Probate.
When should a Will be updated?
It is recommended that your Will be updated each time there is a significant change of circumstances in your life to ensure that it accurately reflects your wishes at all times. This may be a marriage, a separation or divorce, the birth of a child or a change in your financial situation. For example, if you have separated and your ex-partner or spouse now lives with someone else, you may wish to change your Will so that another person benefits from your Estate rather than your former spouse or partner.
If you do not keep your Will updated, then unfortunately there may be very little that your family members can do to stop the division of your estate in accordance with an out of date Will.
Although changes to a Will can be made directly on the original document or by a codicil, there may be serious consequences if these changes are not done properly so it is preferable to prepare a brand new Will. You should seek legal advice before making any changes to a Will.
Do I have to see a lawyer or can a DIY kit be used?
There are many companies now offering will drafting services or DIY Will kits. Whilst these options may seem cheap and time saving, they may have disastrous results if the Will is not prepared or executed correctly.
Even if you think that your wishes are simple and straightforward, it is strongly recommended that you have a solicitor prepare your Will or at least check over it for you. It is easy to make mistakes which may cause disputes after your death or simply invalidate your Will.
Lengthy legal proceedings may be needed to resolve errors in your Will or disputes after your death. These legal proceedings are very likely to take an emotional and financial toll on your family. They may also reduce the value of your estate as legal costs may be paid from your Estate.
The most common mistakes in preparing a Will are:
- Not being aware of the requirements needed to make a valid Will;
- Not considering the effect if the appointed executor or beneficiary predeceases the testator;
- Making changes to the Will that are not signed and witnessed;
- Not being aware of the effect of marriage or divorce or the dissolution of a civil partnership on a Will;
- Not being aware of whether the Will applies to foreign assets;
- Restricting the effect of the Will so that many assets are not covered by the Will, and pass under the Intestacy Rules instead.
As well as preparing your Will, a solicitor can provide advice regarding the possibility of a family member contesting your Will by making a Family Provision claim and ways to minimise this risk.
It is strongly recommended that you seek legal advice where your circumstances or assets are complex. Such situations may be if you wish to make provision for a dependent who is has a disability, you have complex financial affairs or if you own foreign assets.