Wills general principles fact sheet

What is a will?

A will is a written document in which you state how you want your property distributed after you die. A person who makes a will is called a "testator". Making a will allows you to choose what happens to your assets after you die. It also allows you to nominate an executor, who is the person responsible for making sure your wishes are met.

What happens if I die without a will?

If you die without having made a will, you are said to have died "intestate". If this happens, your next of kin will have to apply to the Supreme Court for Letters of Administration, which will allow them to distribute your estate in a certain way. If you are the next of kin of someone who has died intestate, you should seek legal advice. See the factsheet Distributing the Estate for more information.

Who can make a will?

You can make a will if you are over 18 years of age and are of sound mind. You must know that you are making a will, understand the nature and effect of the proposed will and that you are distributing your property according to your own intentions.

If you wish to make a will and you are under 18 years and have never been married, you can apply to the Supreme Court. If you are under 18 years and married, you can make a will. Also, if you are under 18 years and are about to be married, you can make a will in contemplation of that marriage. Your will becomes valid when that marriage takes place.

Formal requirements for making a will

The key requirements for a valid will are:

  • the will must be in writing;
  • the will must be signed by the testator at the end of the will;
  • the testator's signature must be witnessed by two witnesses. (A beneficiary or their spouse cannot witness a will. If they do they will lose their entitlements under that will);
  • the witnesses must sign the will in the presence of the testator and each other.

As the formal requirements for making a valid will must be strictly adhered to, it is recommend that you have your will drawn up professionally by a solicitor or Trustee company.

What should be in a will?

The will should specify that it is your last will and that you revoke any previous wills. It should appoint one or more persons to be your executor/s. Wills often include other requests such as funeral arrangements, preferences for disposal of the testator's body and the appointment of a guardian to look after the testator's children. As wills are only meant to deal with property, wishes such as these are not strictly binding on the executor, but can demonstrate the testator's intention. If a court is asked to determine the residency and guardianship of any children, the testator's wishes will be taken into account.

Your will should provide for payment of funeral expenses and any debts. It should then state how you want your property distributed, either by naming the item and to whom it is given, or by giving a person a certain amount or percentage of the total value of your property. If your will contains specific gifts, it should also state what is to happen with the residue (remaining assets) of the estate.

Executors

An executor is a person named in your will to look after your estate. An executor must be over 18 years of age. It is easier, although not compulsory, if the executor lives in the same state as the testator. It is also preferable to name two executors in a will. This will be of assistance if one executor dies or no longer wishes to act as executor. When considering people to be your executors, it is preferable to choose someone close to you, trustworthy and of a similar age. These are simple safeguards against possible complications later. If no executor is named in your will, the Supreme Court will appoint an administrator.

Changing or updating a will

Once a will has been signed, there can be no alteration, either by crossing out or writing in new clauses. Alterations such as these will have no effect. The best way to amend or alter a will is by doing so in a separate document called a "codicil". For a codicil to be valid it must also meet the formal requirements of making a will. In many ways it may be easier to make an entirely new will.

How marriage or divorce affects your will

Your will is automatically revoked, or made invalid, when you get married and on the day you are formally divorced by a court. However, wills made in contemplation of marriage or divorce are valid. If you do not wish to make a will in this way, a new will must be made after you marry or divorce, otherwise you will die intestate.

Contesting a will

A person may challenge your will on a variety of grounds including that you were not of sound mind, or were unduly influenced or pressured by another person when making your will. Wills can also be challenged if they do not meet the formal requirements for making a valid will.

Another reason for challenging your will is on the ground that you failed to make adequate provision for the proper maintenance and support of a dependant. If one of your dependants expected to be a beneficiary under your will and has been left out, they may be able to make a claim under the Testator's Family Maintenance Act 1912. This is called a testator's family maintenance claim ("TFM claim"). The following people are able to bring a TFM claim: your surviving spouse or de facto; your children (including ex-nuptial, adopted and stepchildren); your parents (if you die without a spouse or children); and a divorced spouse who is receiving or entitled to receive maintenance from you at the date of your death.

If you have been left out of a family member's will and believe you should have received a share of their estate, you should seek legal advice.

For information in relation to Powers of Attorney and the required Forms - see our Self Help Kits.

Last updated: 22-January-2016