Last Will and Testament

Creating a Will is an important step to make sure that we are able to provide for our loved ones after our death. Although it can be uncomfortable to think about, taking some time to decide how our assets should be distributed, and how other important issues should be handled (such as guardians for our children), will make things much easier for those we care about.

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.

A Last Will and Testament 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. 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.

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).

Wills can also 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.

Important considerations in estate planning

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. Many problems with Wills might only be discovered after the Testator has died, meaning it is too late to rectify the problems. 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

How to use this document

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

Use this document to explain how the Testator's estate should be distributed among the people they name. There are several major decisions that the Testator must make to accomplish this task.

• Describe the Testator's Family
• Appoint an Executor
• Name Beneficiaries
• Other Provisions - such as guardians for young children, care for pets, or funeral wishes

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.

Applicable law

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.

How to modify the template

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