A Will is a complex document, and if you make a mistake it could mean that your wishes do not get carried out. Making a Will does require special skill and as such it is highly recommended that you obtain legal advice to make sure your Will is correctly prepared.
What kinds of things do I need to think about if I want to make a Will?
Some of the main things to think about when you’re preparing to make a Will are:
- Who will be your executor to carry out your wishes. It is advisable to appoint more than one executor (or to appoint a substitute executor) in case one executor cannot act.
- Whether marriage or divorce are contemplated, since each event revokes a previous Will unless otherwise stated.
- What assets you have and who you are going to leave them to. Consideration should also be given to any beneficiaries who have special needs or who are at risk as they may require additional provision or protection.
- The risk of your Will being challenged by certain family members and/or financial dependents under the Family Provision Act 1972.
- Whether you want to give any specific gifts such as heirlooms and items of sentimental value.
- Whether you want to give any cash bequests.
- Who you want to leave the remainder of your estate to (after all expenses have been paid) and what is to happen if that person/people you are leaving your estate to passes away before you.
- If you have children under the age of 18 who would you appoint as their guardian.
- Your dying wishes, such as whether you want to be buried or cremated or donate your organs.
What are the basic requirements to make a valid will?
To make a valid Will, you must be:
- at least 18 years old;
- of sound mind ie you must understand what a Will is, the effect and implications of the Will that you are making and what property you are disposing of under the Will and to who; and
- acting of your own free will and not under undue influence (pressured by a more powerful person) or duress (persuaded by threats or violence) from others.
The Will itself should preferably be typed and computer-printed. It is not advisable to write the Will yourself or use a Will kit as there is a significant risk of doing it incorrectly which can result in confusion as to your wishes and expensive litigation, either to establish that the will itself is valid, or its legal effect.
The will must be signed by you in front of 2 adult witnesses who must be present at the same time as you and who cannot be a beneficiary under the Will.
Can I change my Will?
If you want to make a change to your Will, there are a couple of options. You can either change your Will by way of:
- a codicil – which is a legal document that amends your Will. However, codicils need to be signed and witnessed following the same formal procedures as Wills and they can cause problems given it results in there being 2 documents that form your Will; or
- a new Will. This is usually easier and more reliable as it automatically revokes your old Will.
When should I make a new will?
There are some key times when you should think about making a new Will. These include when:
- you marry, get an annulment, divorce, or remarry – if your Will was not made in contemplation of marriage or divorce;
- you start a new de facto relationship;
- you want to change your executor;
- you want to change your beneficiary or any bequests that you have made;
- a beneficiary or an executor dies;
- your financial circumstances change; or
- you have new children and have not made provision for them.
Article written by Jessica Andersen of Lotus Legal.
Contact Lotus Legal for more information or advice on making a Will.