What is a will and how do I make one?

Making a Will gives you control over who receives your assets (and in what share) upon your death. It also allows you to appoint an executor you trust, who will take care that the terms of your Will are complied with. Your Will should also address who you wish to receive your estate should your initial beneficiary fail to survive you. 

In other words, your Will should address any possible situation at the time of your death, even though it might appear to be a very unlikely situation. 

You can change your Will or part of it at any time as long as you have the capacity to do so. 

Many people think they are not wealthy enough to make a Will. 

You should consider that a Will only comes into effect on your death, and it is likely that you will have more wealth than you do today. Most employed people also have superannuation, and most funds have a default level of life insurance. Your superannuation and such life insurance might form part of your estate and it can be a substantial asset. 

A Will is particularly important for anyone with a family or other dependants, especially if your family circumstances have changed recently. 

All too often, leaving no Will creates yet another worry for your family at a time of bereavement and disruption at home. Making a Will is a way of making life easier for them. 

A valid Will is one that complies with the requirements set out in legislation. To be valid, your Will must be: 

• In writing — handwritten, typed, or printed. 

• Signed — ideally your signature should be on the bottom of each page and at the end of the Will. 

• Witnessed — two adult witnesses must be present when you sign the Will, and they must ideally also sign at the bottom of each page and must sign at the end of the Will. You and the two witnesses must all be together until all three of you have signed the Will. 

If your Will is not executed in strict compliance with these requirements, it will be termed ‘informal’. An informal Will may be accepted under certain circumstances, but it is safer to comply with these relatively simple formalities. 

Will drafting is a complicated and specialised area of practice, and solicitors need to carefully consider many issues when crafting an effective Will for you. Therefore, you should choose a solicitor with specialist knowledge in Wills and estates. 

A Will is one of the most important legal documents you will ever make — it is a false economy to try to do it cheaply and without skilled, professional advice. 

As a referral service, the Society offers the following tools to help you find the right lawyer for you:

• Online search: Find a lawyer – select ‘Wills (drafting)’ from ‘Areas of Practice’ 
• Online search: Find a law firm – select ‘Wills (drafting)’ from ‘Areas of Practice’ 

• Call the Law Society on 02 6274 0300 and we can put you in touch with a lawyer or a firm who can help you 

You should keep your original Will in a safe and secure place, such as with your solicitor. You should keep other original documents that may be needed to administer your estate with your Will (for example title deeds, insurance policies, trust deeds, and the like). 

You should keep a certified copy of your Will at home and note on it where the original is kept. 

You should tell your executor where you keep a copy or certified copy of your Will. 

Yes. You are free to alter your Will at any time as long as you have mental capacity. 

It is in your interest to review your Will every three years (or whenever any major event occurs in your family, your assets, or the taxation laws) to make sure the Will is up to date and still reflects your wishes. 

Your solicitor will: 

• Make sure your will is valid — that it is properly drafted, signed, and witnessed. 

• Make sure your wishes are clearly expressed in the will. 

• Advise you on the making of adequate provision for your spouse and children, or for any former spouse or dependants, thereby minimising any challenges to your will. 

• Advise you as to any possible liability for capital gains tax or superannuation death benefits tax which might result from the provisions you intend to make in your will. 

• Advise you on choosing an executor. 

• Advise you, in consultation with your financial planner, on the best way to arrange your affairs to provide a suitable balance between enjoyment of property and income during life, and the preservation or creation of capital for your family, or other beneficiaries on death. 

• Keep the will in a safe place for you. 

You should expect to pay a moderate fee for making a Will. If you are concerned about fees, discuss it with your solicitor in advance. 

A specialist lawyer will also advise you in relation to: 

• whether your Will will be revoked by a subsequent marriage;  

• how to protect your assets for your family;  

• whether you can minimise any tax payable by your executor or your beneficiaries after you pass away;  

• whether you should consider including testamentary trusts or special disability trusts for your beneficiaries;  

• whether anyone might be able to make claims against your estate and anything you can do;  

• whether you should include a right for a beneficiary to occupy an estate property after your death;  

• if you make a Will with a partner, whether you can change it in the future; and  

• any capacity issues. 

When people do not see a specialist lawyer, they often make mistakes.

Some of the most common mistakes are:  

• The Will being unclear or ambiguous;  

• Forgetting to appoint an executor 

• Not dating the Will 

• Gifting assets held jointly with another person or assets held in a trust 

• Not taking into account a particular beneficiary's circumstances (i.e. if they have a disability or cannot manage their money)  

• Not signing the will in front of two independent witnesses 

• Not dealing with their whole estate 

• Not taking steps to document that the will-maker has capacity to sign the Will  

• Later automatically revoking the Will by getting married  

These mistakes can result in: 

• The Will being invalid and, therefore, another Will or the law governing how the estate is to be distributed, which means a distribution not in accordance with your wishes;  

• Court proceedings needing to be commenced so the Court can decide what the Will means;  

• the Court needing to appoint an administrator to administer your estate;  

• a time delay in your executor being able to administer your estate;  

• more legal costs than otherwise would have been incurred to administer your estate; and  

• disputes between your beneficiaries, which also have an emotional toll.