What is a will?

A will is a legal document that explains how you want your assets to be distributed after you pass away, including your house, money, and personal belongings.

Having a will that is clear, legally valid, and up to date will ensure your assets are protected and distributed according to your wishes.

A will lets your loved ones know who you wanted as your beneficiaries, and this can help prevent issues regarding the distribution of your property and possessions (referred to as your ‘estate’). Your beneficiaries – and your lawyer – will then know who you wanted as your executor, the person or organisation responsible for administering your estate after you pass.

It will also allow for the provision of any children under the age of 18 in your care at the time of your death.

As your personal situation changes during your lifetime, such as children, grandchildren or spouses becoming part of your life, your will needs to be updated to reflect your change wishes due to these developments. Updating your will is essential if you wish to ensure there is no confusion when you pass away as to how you would like your estate bequeathed.

What is a last will and testament?

Throughout your life you’ll update your will as necessary, so your last will and testament is the most recent legal document you executed before your death, and that is signed by a legal representative. It essentially cancels out any will and testament you’ve made before.

All previous versions of your will created are discarded by the court unless in the case of contesting a will on the basis of undue influence – see ‘Challenging a Will’. And of note, a will does not expire unless there is a more recent will that has been legally witnessed and signed.

In all other respects a last will and testament is the same as a will – it’s the legal document by which you identify those individuals or organisations that will receive your assets or possessions on your death. These individuals and charities are commonly referred to as the beneficiaries under your last will and testament.

In addition, within the provisions of your last will and testament, you nominate an Executor to be responsible for the proper administration of your estate and the disposition of your property to your intended beneficiaries. The Executor may be an individual or an institution.

After your death, the person or entity you have nominated to be your Executor petitions the court to be appointed Executor of your estate. After being appointed, the Executor manages your estate’s financial affairs and ensures that your property is distributed in accordance with your wishes as indicated in the last will & testament.

The process of making a will

If your circumstances are simple, you can make a standard will online yourself.
But if your circumstances are a bit more complex, you should get a lawyer to draw
up a will for you.

How to make a will

  • 1 Determine what your assets are For example, do you own your home? Do you have a car? Etc.
  • 2 Decide how you would like your assets to be divided
  • 3 Begin writing
  • Introduction. Identify that this document is your ‘Last Will & Testament’ (when you update your will you will still identify all future iterations as the Last Will & Testament). Include your full name and address, and state that you are over 18 years of age and mentally competent, and that you are not under duress.
  • Select an executor. Here you identify who you would like to be the executor
    of your estate.
  • Identify your beneficiaries. List the people who will be beneficiaries of your estate clearly so there can be no mistaken identity.
  • If you have children under 18 or dependents, name a guardian. You should leave provisions here if you have minor children or dependents in your care for who you would like the guardian to be. If there is another living parent you can specify them, however you could also name an additional person in case both parents were to pass away or be unable to care for the dependents.
  • Divide your assets. Bequeath each asset in your estate to the person/people you would like. Even if you prefer to divide your estate into percentages, for example leaving 50% to a spouse and 25% each to two children, you should still list each asset clearly.
  • Sign your will clearly and have two eligible people witness you signing – they will have to sign the document as proof of its validity. To be eligible, they cannot be beneficiaries and must be over the age of 18.

For more information on drafting a will,
download our Free Legal Will Kit here.

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According to Kristy Hatcher, a solicitor specialising in Wills & Estate Litigation at Owen
Hodge Lawyers, the most common mistake she sees people make when compiling a will is
‘doing the will yourself’ without following a legal template or consulting with an
experienced lawyer.

“We live in a time when our lives are complex, our relationships even more so. Blended families, estranged relatives, loved ones with special needs with either a disability or addiction issues will be requiring trust arrangements.

It is extremely rare to see a person whose circumstances can be addressed by a DIY will. Getting professional advice for individual situations is key. As circumstances change, reviewing the will and updating arrangements are equally as important.”

Kristy Hatcher Wills & Estate Litigation

Making a valid will

For a will to be valid, it should be:

  • In writing (handwritten, typed or printed)
  • Written by a person who is over 18 years of age and mentally competent
  • Properly drawn up and clearly sets out the will-maker’s wishes
  • Signed in the presence of two adult witnesses who also have signed the will and are not beneficiaries.5
  • You don’t have to use a lawyer for your will to be legal, you could however choose to use our free Will Kit then you could consider having your solicitor review the document and keep a copy on file for the future. It’s also best to have a lawyer at minimum review your will to ensure it’s done properly.6

DID YOU KNOW?

  • 93%
  • of people over the age of 70 years old in Australia have made a will?7

If you have assets overseas and have made an international will, it will be recognised as a valid will in countries that are party to the Convention Providing a Uniform Law on the Form of an International Will 1973 – Australia is a party to this agreement.9

Copies of your will should be made with a note explaining where the original one is kept, preferably in a safe place known to you and your executor. This ensures the original will isn’t lost or misplaced, maintaining its validity.

Nominating an executor

When you make a will, you will need to nominate an executor who will be responsible for managing your estate once you are gone. When choosing an executor, it’s recommended that they are younger than you but over the age of 18 years old, are trustworthy, and can take on the responsibility. You should also nominate reserve executors in case the person you have appointed passes away before you, or is unable to take on an executor’s duties due to personal circumstances (such as being overseas and unable to return, or non compos mentis – meaning to be not in your right mind or not sane).6

You may choose to nominate a lawyer as your executor due to their expertise in administering wills, or you can choose a family member, friend, or expert from a will-related service.8

Owning assets in another state or country

If you owned assets in more than one state or country, your executor may have to apply for a Grant of Probate in each area where the assets are located. But if you had assets in different states of Australia and in certain countries, your executor can apply for a resealing of the original grant.21

Changing your will

You will need to change/update your will when your circumstances change. For example:

  • If you divorce or remarry
  • If another child, grandchild, or other
    beneficiary is born
  • If you wish to remove or add a beneficiary
  • If one of your beneficiaries passes away.8

If you want to change your will, you’ll have to make a ‘codicil’, which is an amendment to the will on a separate document. Like your will, the codicil should be in writing, signed, and witnessed by two people.8

It may be best to consider involving your lawyer or another form of legal council when making changes to your will to ensure the legality of the changes are upheld as you wish them to be.9

Things to consider & do when planning your will

  • Carefully assess your personal assets and any other assets you control
  • Consider your financial dependents and less abled family members
  • Fully understand your relationships
  • Consider downsizing and giving gifts whilst you’re alive
  • Hold sufficient funds/assets for your financial, mental & health security
  • Plan on holding a family conference
  • Check on your super arrangements & investment portfolio
  • Make provisions to assets you control and nominate the
    responsible person.

Challenging a last will

A will can be challenged on the basis of undue influence. This challenge can be validated if it is determined that you didn’t act voluntarily with true intentions while making the will and coercion was involved.

A will can also be challenged on the basis of fraud, which can be validated if it is shown that:

  • A material fact was intentionally misrepresented
  • You were deceived in making your will by such misrepresentation
  • You relied on such misrepresentation
  • The person who committed the fraud was benefited under the will.

Additionally, some people may feel they haven’t been fairly treated in your will. For example, a family member may have been left out of the will, or a loved one may think they should’ve received more from your estate. In fact, will disputes are becoming increasingly common due to the increasing complexity of the family unit.

People who think they are entitled to a portion of your estate, or a greater portion if they have already been named as a beneficiary, may make a claim against your will, which is referred to as ‘contesting a will’.

And it is not unprecedented for contests such as these to be successful – for example, in the case of the estate of Louis Kennedy, a Double Bay jeweller, his two adult children successfully petitioned the court for a greater share of his $5million estate than the $50,000 he bequeathed them.13 There are likely many cases where the court has decided that the “moral obligation" of a parent’s bequest to adult children is not reflected in the beqeathed (left to someone in a will) amount.13

People who can contest your will include:

  • Your current spouse
  • A former spouse
  • Your current de facto partner
  • A former de facto partner
  • Your children or step-children
  • Your grandchildren who were dependent on you and lived in the
    same house
  • Someone with whom you were living in a close personal relationship
    with at the time of your death.

DID YOU KNOW?

  • 77.6%
  • of seniors hope to see the younger generations in their family have the financial know-how or the ability to live within their means.1
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What is probate?

Even if you have a valid will, your assets can’t be distributed instantly unless a court grants probate first.

Probate is a process where your executor has to register and ‘prove’ your last will and testament in your state or territory’s Supreme Court to get the authority to administer your estate and handle the disposal of your assets and debts.15

What is involved during the probate process?

Each Australian state and territory has slightly different laws and processes regarding
probate, however the process for the state of NSW, as an example, is as follows:

  • Your executor has to publish a ‘Notice of Intended Application for Probate’ on the NSW Online Registry website. This gives the Supreme Court advance warning of the application and allows your creditors and relatives an opportunity to make a claim on the estate or against the will.16
  • Your executor then has to wait 14 days after the probate notice is published before making a probate application in the Supreme Court.16
  • After 14 days, your executor can make a probate application (note that it should be made within six months from the date of your death). The documents needed are the original will, any codicil, and the Death Certificate. The forms required are the Summons for Probate, Grant of Probate, Inventory of Property, and Affidavit of Executor. These all need to be prepared, signed, and lodged.17
  • Once the Court has approved the application, your executor will be given a ‘Grant of Probate’.18 This legal document confirms that the will-maker has died, the will is valid, and the executor is who they say they are. It essentially authorises your executor to manage your estate in accordance with your will.15
  • Your executor can then publish a ‘Notice of Intended Distribution’ and a ‘Notice of Filing Accounts’. This will let your beneficiaries and creditors know that your assets will be distributed and that accounts are to be filed with the Court.19

probate in your state or territory

For information on probate in your state or territory, visit the relevant site below.

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