Drafting Wills in Australia
A will is a legally binding document that outlines how an individual’s assets will be distributed upon their death. It also allows a person to appoint executors to carry out their wishes, nominate guardians for minor children, and specify funeral arrangements. Properly drafting a will is essential to ensure the document is valid under Australian law and accurately reflects the testator’s intentions.
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Drafting Wills: Considerations
Testamentary Capacity:
The testator must have the legal capacity to make a will, which includes being of sound mind, understanding the nature and effect of the document, and being free from undue influence.
Importance of Clear Instructions:
The language used in the will must be clear to avoid ambiguity, disputes, or misinterpretation. This includes explicitly identifying beneficiaries, assets, and the intended distribution.
Compliance with Legal Formalities:
A will must comply with the formal requirements under Australian law, including being signed by the testator in the presence of two witnesses who are not beneficiaries.
Overview
The legal framework for wills in Australia is primarily governed by state and territory legislation, with the Succession Act 2006 (NSW) serving as the relevant law in New South Wales. These laws outline the formal requirements for creating a valid will, including proper execution and witnessing. These laws also address the rules of intestacy, which apply when a person dies without a valid will, ensuring their estate is distributed according to legislation.
While testamentary freedom allows individuals to decide how their assets are distributed, this principle is balanced by family provision laws, which enable eligible persons to seek adequate provision from an estate if they are left without sufficient support. This highlights the importance of Will Preparation and holistic advice regarding Estate Planning.
In the event of a dispute, the court also plays a significant role in determination of the validity of wills, the interpretation of their terms, and claims made under family provision legislation. For individuals navigating these complexities, understanding Legal Wills in Australia and the implications of intestacy laws is vital to safeguarding their estate and supporting their loved ones.
How We Can Help
Our lawyers specialise in estate planning across Australia, with a focus on drafting wills that reflect each client’s unique circumstances and wishes. We’re proud to have an Accredited Specialist in Wills and Estates Law, Sara Price, Partner, as part of our team—bringing a high level of expertise to even the most complex matters.
We provide clear, practical guidance on legal requirements, help minimise the risk of disputes, and ensure your will is valid under the relevant jurisdiction. Whether navigating blended families, business interests, or intricate asset structures, we work to protect your intentions and provide peace of mind for your loved ones.
Drafting Wills Services:
- Choosing an Executor for Your Will in Australia
- How to Draft a Legally Valid Will in Australia: Key Requirements and Best Practices
- Who Inherits Your Superannuation? Understanding Non-Estate Assets in Wills
- Updating Your Will: When and Why You Should Review Your Estate Plan
- Common Mistakes to Avoid When Drafting a Will in Australia
- Safe Custody Service: Secure Document Storage
- Acting as an Executor of an Estate: Responsibilities and Challenges
Our Estate Planning Team are here to help. Contact us for support.
Common Scenarios in Drafting Wills
Blended Families and Estate Planning: A common scenario involves blended families, where a testator wishes to provide for both their current partner and children from a previous relationship. For example, a testator may want to allocate a portion of their estate to their current partner while ensuring their children from a prior relationship also receive a fair share. Unfortunately, even with clear provisions, disputes can arise, potentially leading to family provision claims. Professional legal advice is essential to structure the will effectively and minimise conflicts.
Changing Circumstances and Will Validity: Another scenario arises when a testator’s personal circumstances change, such as marriage, divorce, or the birth of a child. For instance, in some Australian jurisdictions, marriage can revoke a will unless it includes a specific clause to address this. Such changes can render an existing will partially or wholly invalid, creating uncertainty about the estate’s distribution. Regularly reviewing and updating the will ensures it remains aligned with the testator’s current wishes and legal obligations.
Legal Terms in Will
- Testator: The testator refers to the individual who creates and executes a legally valid will, outlining their wishes for the distribution of their assets and the care of dependants after their death.
- Intestacy: Intestacy occurs when a person passes away without leaving a valid will, resulting in the estate being distributed according to the default succession laws of the relevant jurisdiction.
- Executor: The executor is the person appointed in the will to manage the deceased’s estate, which includes gathering assets, paying debts, and ensuring the provisions of the will are carried out accurately and lawfully.
- Beneficiary: A beneficiary is an individual or organisation designated in a will to receive specific assets, funds, or benefits from the deceased’s estate as per the testator’s instructions.
- Family Provision Claim: A family provision claim is a legal challenge brought by an eligible person who argues that the will does not adequately provide for their maintenance, education and/or advancement of life, seeking a court order to redistribute the estate more fairly.
FAQs on Drafting Wills in Australia
What happens if I die without a will? If a person dies without a valid will, their assets are distributed according to intestacy laws, which may not align with their personal preferences or intentions. This can result in delays, additional costs for the beneficiaries, and potentially unintended outcomes for the distribution of the estate.
Can I update my will? Yes, it is both possible and advisable to update a will to account for major life changes, such as marriage, divorce, the birth of a child, or acquiring significant assets. This is typically done by drafting a new will or adding a codicil, which is a formal, legally recognised amendment to an existing will.
Who can challenge my will? Certain individuals, including spouses, children, or dependents, may challenge a will under family provision laws if they feel they have been unfairly excluded or insufficiently provided for. Challenges are usually assessed by courts to ensure fairness and compliance with legal obligations.
Is a handwritten will valid? Handwritten wills can be legally valid if they comply with the formal requirements, such as being properly signed and witnessed. However, these wills are more prone to errors, ambiguities, and disputes, making them a less reliable option compared to professionally prepared documents. Often, rectifying these issues is an expensive cost for the Estate when the testator dies.
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Disclaimer: Any information found in articles or pages on our website is for general guidance only and should not be considered legal advice. For advice tailored to your specific situation, please contact us directly to speak with one of our qualified legal professionals.
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