Last Will and Testament

What is a Last Will and Testament?

A Last Will and Testament (often simply called a "Will") is a legal document that details how a person's assets and property will be distributed after their death. Creating a Will as a part of an estate plan ensures the person making the Will, (known as the Testator), will have their wishes followed and that the people closest to them are taken care of.

What is the difference between a Will and a Power of Attorney?

If a person (let's call him Andrew) creates a Power of Attorney, it will deal with his affairs while he is alive. It appoints another person to make decisions on Andrew's behalf - typically in relation to his legal and financial matters. However, a Power of Attorney ceases upon Andrew's death.

On the other hand, if Andrew writes a Will, it will only take effect once he dies. It outlines how his assets are to be distributed after his death.

Is it mandatory to have a Last Will and Testament?

No, but it is highly advisable to have one. Creating a Will is an important step to make sure that we are able to provide for our loved ones after our death.

Unfortunately, many Australians put off preparing a Will, and end up dying without one. This can lead to a lot of stress and uncertainty for their family members, as well as wasted time and money, as the family members try to deal with the deceased's estate. It can also lead to conflict between family members as they may have different ideas about what the deceased would have wanted. Preparing a Will can avoid a lot of these issues, by providing a clear and concise statement which outlines our wishes.

People often create a new Will or update their existing Will for the following reasons:

• Marriage or divorce (a change in marital status may void an old Will);
• Significant change in amount of money or property owned;
• Moving to another jurisdiction;
• Death of an Executor, Trustee, Guardian, or significant named Beneficiary;
• Birth or adoption of a new child in the family;
• Significant change in tax laws; or
• Desire to add or remove Beneficiaries named in a prior Will.

What is a Testator?

This is the person that is creating the Will. The Will describes what should happen to the Testator's assets after they die.

What is an Executor?

An Executor is a person responsible for collecting the assets of the estate, paying any debts of the estate, paying state and federal taxes, and then distributing the assets of the estate in accordance with the directions of the Will. Administering the estate can be complex, time-consuming and stressful, so it is important that the Testator chooses their Executor(s) carefully.

What is a Beneficiary?

This is a person who will inherit something from the Testator's estate. Many Testators name more than one Beneficiary. For example, they might name all of their children as Beneficiaries.

What is an Estate?

This is everything owned by the Testator at the time of their death. This could include real estate, cash, shares, business interests, vehicles, furniture, and other household items.

Who can create a Will?

In order to make a Will, the Testator generally must be at least 18 years old and must have legal capacity (effectively, they must have the capacity to understand what they are doing, and the consequences of it).

For anyone suffering some kind of mental impairment (such as older people who suffer from dementia or similar conditions) then there is a serious risk that their Will could be challenged after their death. A person wanting to challenge the Will (for example, someone who thinks they should have received a greater share of the Estate) could claim that the Testator's Will is invalid because their cognitive state meant that they were unable understand what they were doing. Any Testator for which this is a even a remote possibility should make sure to have a lawyer help with their Will. A lawyer is able to verify whether or not they actually understand the matter, and the lawyer will be able to make notes which can later be used to show that the Will is valid.

A Will can also be invalid if the Testator was coerced into making it. Therefore, a Will should only be created by Testators who are freely choosing to do it.

What must be done after a Will is created?

Once the Testator has completed their Will, they should take some time to carefully review it to make sure that it accurately reflects their wishes. A Will is a very personal document and it is up to the Testator to decide what they want to do with their estate. It is not possible for our document to cover all possibilities, so the Testator may have other options that we have not addressed in our document.

If the Testator thinks this document does not accurately reflect their wishes, or if they are confused about what it says, then they should seek legal advice before signing it.

Once the Testator has thoroughly reviewed the Will and is confident that their wishes are accurately reflected, the Testator should sign and date the Will in front of two witnesses. The witnesses should also sign the Will, attesting that the Testator was of sound mind and had the capacity to make these decisions when they signed the Will. The witnesses should all be 18 years old or older and not named as a Beneficiary in the Will. In addition, the bottom of each page of the Will should be numbered and initialed by the Testator and the witnesses.

Once the Will has been signed and completed, it should be put somewhere for safekeeping, such as in a home safe or or a bank safety deposit box. The Testator may also give copies of the Will to people with whom they are close and that they trust, such as a spouse or their children.

Is it necessary to have witnesses for a Will?

Yes, for a Will to be valid, the Testator should sign it in the presence of two witnesses. The witnesses should also sign it in the presence of the Testator. Ideally, the Testator and the witnesses should use the same pen and should also sign every page of the Will.

What are some important considerations when preparing a Will?

Wills can be challenged in court in Australia, especially if they have been prepared in a way that does not adequately address the Testator's circumstances. This can cost a lot of money out of the estate (meaning there is less money left for the Beneficiaries).

Unfortunately, problems with most Wills are not discovered until after the Testator has died, so it is too late to rectify the problems. Therefore, it is very important that all Wills are prepared carefully, while considering applicable laws, and if the Testator is unsure about anything they should seek legal advice.

Estate planning and writing a Will is complicated. If a Will is not prepared carefully, the assets may be distributed in a way that does not match the intentions of the Testator. There are a lot of important considerations, some (but not all) of which are set out below. These matters are also discussed in more detail in our legal guide Where there's a Will, there's a Way: Exploring the Importance of Estate Planning. If the Testator has any concerns about any of these issues, or wants to ensure they have considered all of the relevant matters, then they should strongly consider seeking legal advice.

• Failure to properly provide for dependants
• Complicated family situations - such as second marriages and step children
• Making sure the Testator has testamentary capacity, and there is evidence to support this if it is likely to be challenged
• Providing for vulnerable Beneficiaries
• Avoiding duress or undue influence
• Who to appoint as Executor

For further information, read our legal guide Where there's a Will, there's a Way: Exploring the Importance of Estate Planning.

What must a Will contain?

Use this document to explain how the Testator's estate should be distributed among the people they name. There are several important details that the Testator should include in their Will:

• Identify the Testator, including their full legal name, any former names, and their date and place of birth.
• Identify the Testator's family - including their spouse (if applicable) and any biological or adopted children. These people should be identified even if they are not going to receive anything under the Will.
• Appoint one or more Executors - it is usually a good idea to appoint more than one Executor, in case one of them is not available or dies before the Testator.
• Name one or more Beneficiaries - these are the people who will receive part of the Testator's Estate in the first instance.
• Name alternate Beneficiaries - these are like a backup option. For example, if the Testator names their spouse as their sole Beneficiary, but the spouse dies before the Testator, then what should happen to the Testator's Estate? Who should it go to in those circumstances?
• Describe how the Testator's Estate will be distributed - if they are naming multiple Beneficiaries, will the Beneficiaries each receive an equal share? Will the Testator be providing any specific gifts (such as a specific item of jewellery to one child and a specific painting to different child)?
• Describe what will happen to the residue of the Testator's Estate - in other words, what will happen to any leftover assets if they cannot be distributed to the Beneficiaries.
• Other Provisions - such as guardians for young children, care for pets, or funeral wishes.

Which laws are applicable to a Last Will and Testament?

The creation and interpretation of Wills are a matter of state or territory law. Each state and territory of Australia has legislation setting out the rules for creating Wills. In addition, there is a large body of common law regarding interpretation of Wills and challenges to Wills.

If in doubt, seek legal advice.

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