A will is a document that sets out how your property is to be distributed when you die. Its important to have a will to ensure your wishes are carried out. If you do not have a will, your estate will be distributed to your relatives in accordance with the rules of intestacy.
How can I make a will?
It is recommended that you engage a lawyer to provide you with advice on structuring your estate and to draft your will for you.
Alternatively, you can draft your own will using an Australian Will Kit available for this purpose. If you plan to make your own will, you must comply with certain requirements in order to make it valid. If your will is invalid, your estate will be distributed in accordance with the last valid will you made, or if you haven’t made a will before that, in accordance with the rules of intestacy.
Drafting and executing wills
A will may either be handwritten or typed but it must be in writing in order to be valid. A will must also be signed and dated by the testator (the person making the will), in the presence of two witnesses who must see the testator sign the document and then co-sign in each other’s presence. The names and addresses of witnesses should be printed below their signatures.
A witness can be anyone aged 18 years and over who is of sound mind and capable of seeing the testator sign the will. The executor or a trustee named in your will may also be a witness, however a person who is receiving a gift under the will (a beneficiary) should not witness the will.
It is generally recommended that the testator sign at the bottom of each page of the will, as well as the attestation clause at the end of the document. As far as possible, alterations should not be made after the will has been signed, but where necessary, these must be initialled by the testator and both witnesses in each others’ presence.
The original copy of the will should be marked “Original” and stored in a safe place. Make sure that the executor(s) of your will know where it is kept.
When should I update my will?
You should update your will after any major life event such as: getting married, entering a de facto relationship, separation, divorce, having children, retiring or upon the death of a spouse or partner. This is because certain events change the status of your will. For example, marriage revokes any prior will (unless it is made in anticipation of marriage) and divorce will revoke any gifts in your will to your former spouse.
Circumstances and relationships also change so it is a good idea to review your will every few years to make sure it still reflects your wishes. When you make a new valid will, it revokes and overrides any previous will that you may have made.