Making a Will in Australia
People often think about making a will when a major event happens in their life, such as a marriage or the purchase of property. Some are reluctant to seek legal advice and consider that it would be easier to make a will themselves. This page outlines some of the requirements for a legally valid will.
Why a lawyer should prepare your will
Too often lawyers see the unintended dire consequences of a poorly drafted homemade will.
When a person dies leaving a will that does not meet the legal requirements of the state laws that apply, executors are often put through a rigorous and unnecessary application process with the Probate Office, including giving evidence to the Probate Registrar as to how the will was executed. Ultimately, the Probate office may not be satisfied with the answers to their enquiries and the result is a declaration that the will is invalid because it doesn’t meet the legal requirements.
It is also common for an executor to obtain a grant of probate but be unable to understand the wishes of the testator because they haven’t been expressed clearly. This can result in immense costs to the estate.
A solicitor can listen to a client’s instructions when making a will and turn them into a document that meets the requirements of the law and gives effect to the person’s wishes. A lawyer can provide advice about testamentary trusts, life interests, specific bequests, and other ways for disposing of assets that a person making a will without legal advice would be unlikely to consider.
Before the will is written
Before making a will, you should write a list of your assets and how you own them – for example, whether you own a house as joint tenants with your partner, or as tenants in common. Your lawyer can then explain to you how these assets devolve on your death, and whether they are assets that can be included in your will.
You should also consider who you want to act as your executor. Your executor is the person who will apply for a Grant of Probate of your will at the Probate Office or Registry in your state or territory. The Grant of Probate confirms the validity of the will and enables the executor to call in your assets and distribute the estate. Your executor may be a family member, friend, or a professional such as a lawyer or accountant.
It is important to choose an executor who you trust to carry out your wishes in a fair and unbiased manner. Consider whether your executor will get along with the beneficiaries and whether they will be able to remain neutral in the event of conflict. Your executor should live in the same state or territory as you.
Writing the will
When making a will, your lawyer can help you understand whether a testamentary trust or life estate may be more appropriate than an outright bequest.
Testamentary trusts are trusts created within the will, where an asset of yours is set aside and held on trust for the benefit of a nominated beneficiary. Testamentary trusts are an excellent way of putting funds or property aside for a minor child or a disabled beneficiary. If you do have a minor child, you may want to include a clause in your will regarding who you wish to act as guardian for that child in the event the other parent dies before you. This will not be legally binding, but will serve as a record of your wishes.
Once a draft will accurately represents a testator’s intentions, a lawyer will usually invite the testator into their office to have the will executed in accordance with the legislation. Across Australia, the minimum number of witnesses required is two witnesses, who both must be present at the time the will is executed by you or by someone at your direction. A lawyer can ensure that the witnesses are competent to witness a will.
After the will has been made
Victoria and some other states have a Will Bank where wills can be deposited for safe-keeping after they have been executed. Other states, including Western Australia, do not have will banks and it is up to individuals to decide where to store their will. A will should be stored somewhere fire-proof, flood-proof and theft-proof, such as a safe or a bank.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.