Here are 4 tips on how to write a Will that’s legally binding
Writing a Will that will stand up in a court of law is best left to Wills and estate lawyers – they’re the experts. If you want to know how to write a Will in Australia yourself, be advised that there are a few things to consider. Here are some tips on crafting a Last Will and Testament that is legally binding. Getting it right means you get to have the last word on how to divide your assets, and who looks after your children (if they are minors) and pets.
How to write a Will
Ensure your details are accurate and up-to-date
For a Will to be considered a legal document, you need to be 18 years of age or older. There are some limited cases where a person younger than the age of 18 can make a Will, but this is a more complex situation that requires expert legal advice. Ensure your full name is correctly written, as well as your current address and identification details.
Explicitly state your mental state
Make certain it has been clearly stated that you are of “sound mind” or mental health, and you are revoking all other Wills that you may have executed before. This is important in case the Will is contested or challenged. If there are several versions, it is important to know which is the most current and thus, the legally binding version.
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Assign your Executor and beneficiaries
Bear in mind when learning how to write a Will that you’ll need to appoint an executor and beneficiaries. The executor of a Will is the person who carries out your instructions and administers your estate after your death. They ensure that your assets will be distributed as per your wishes. Those who receive your assets, or who are appointed guardianship of your children, are beneficiaries. It is important that as relationships and circumstances change, you continue to update your Will as well as who benefits from your estate.
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Ensure it’s properly signed with witnesses
Ensure there is a date and your signature on each page, and there are at least two witnesses available for signing the document to ensure it is legal. Creating your Will with a lawyer or in front of a Notary Public makes sure the Will is watertight and is a good step to take if you want to avoid any disputes.
Even if you create your Will on your own, it is important to at least have it checked over by a solicitor or Public Trustee, otherwise you may end up invalidating your wishes and your estate may go to tribunal after you pass.
Although it may seem more cost-effective to prepare your own Will, ideally it should be written with the help of experienced lawyers to avoid any disputes and ensure your wishes are carried out. Please feel free to contact our Wills and Estate Planning team during business hours on 1800 770 780 for advice on how to write a Will.
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Frequently asked questions
Yes you can, but it is highly recommended that you speak to a Wills and estate lawyer to ensure it is valid and contains all the necessary information.
Among other things, you should not put joint accounts or jointly-owned property, life insurance or anything you don’t own outright in your Will.
While businesses interests can legally be given away through a Will, you may not want to as chances are this would be probated in court, which can take a significant amount of time, making it a challenging transition once you pass. You should also not include any funeral instructions, as your remaining family members may not be able to view the Will before making these arrangements. To make sure your wishes are carried out, communicate with your executor ahead of time, or draft a letter of instruction, where you can include any personal wishes or desires.
If you are unsure about what should and should not be in your Will, contact a Wills and estate lawyer.
If you die without a Will (also known as dying intestate), your direct family is automatically entitled to your estate and assets. Grant of Letters of Administration will also need to be made to the Supreme Court.
The executor of the Will (nominated in the Will) will need to inform the beneficiaries.
- Spouse/partner
- Children
- Parents
- Siblings
- Grandparents
- Uncles and aunts
- Cousins
Grandchildren do not automatically inherit from a Will unless they are named as beneficiaries.