Elder
4. Making a Will
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 22 Jul 2015
- A will is a very important legal document necessary for future estate planning. It sets out who will receive your property and the personal possessions that make up your estate when you die. Without a valid will you cannot be sure that your property will go to the individuals you want it to.
- When you make a will you are referred to as the 'testator'.
- In NSW and most other states and territories a person may prepare their own will without the assistance of a solicitor. However the establishment of a will is a complex matter and making your own without assistance is often not advisable because:
- for a will to be valid it must conform to strict legal requirements; and
- failure to conform to those requirements can leave your will open to challenge after your death. For example if you do not use appropriate and precise language your intentions may not be clear enough for a court to understand and your will may be found invalid.
- A will is one of the most important documents for good estate planning. You should appoint a specialist lawyer to draft your will on your behalf. Our free Find a Lawyer directory provides contact details for lawyers near you who may suit your needs.
- When it comes time to draft a will there are various requirements that are necessary before a court will consider the will to be valid.
- The will must be in writing and must be signed by the testator.
- If the testator is unable to sign the will then it must be signed by another person in the presence and direction of the testator. For example if the testator suffers from a physical impairment that renders them unable to sign another person may sign on their behalf. The signature can be handwritten or printed.
- The testator must sign the will or acknowledge their signature or a signature made on their behalf in the presence of 2 or more witnesses.
- A valid will must be witnessed by at least 2 people who are not beneficiaries or named as executors in the will. The testator must be present when each witness signs the will but it is not necessary for each witness to be present when the other signs.
- In addition to these core requirements there are some additional recommendations to help you understand how a will works and how to ensure that your will can be upheld in the event that someone tries to challenge its validity.
- To reduce doubt a testator should include a revocation clause that says words to the effect of “I revoke all my prior wills and codicils.”
- A codicil is a testamentary document made subsequent to the execution of a will. It is usually made to make minor changes to a will.
- An executor should be appointed under the will to obtain a grant of probate and administer the estate. It is an executor’s responsibility to:
- pay all debts including any costs associated with the funeral;
- collect all assets; and
- distribute all assets as prescribed under the will.
- A testator should either appoint more than one person as an executor of the will or list a substitute executor. This is because if a sole executor dies before the testator and there is no substitute executor then a grant of administration must be applied for.
- An executor has a right to apply to the Supreme Court for commission for doing their duties.
- A direction under a will specifying specific funeral requirements is not legally binding on the executor of the will. For example a request that you be either buried or cremated is not binding.
- It is a good idea to talk to your executors and your family about your wishes in advance so that everyone knows what you want to happen and where to find your will.
- Sometimes a will is not found until after the funeral and it can be upsetting for your family to find that you had specific wishes that they did not know about until it was too late.
- All beneficiaries must survive the testator by 30 days to take any interest left under the will although this rule does not apply if there is a contrary intention in the will. For example if a testator specifically states under a will that ‘the beneficiaries must survive the testator by 14 days in order to take a benefit under this will’ this would indicate a contrary intention for the purpose of section 35 of Succession Act 2006 (NSW).
- There are many such rules that a lawyer can advise you on. In order to give proper effect to your intentions you must first understand what law applies and how it applies. A lawyer can ensure that the words you use to draft your will accurately reflect your intentions.
- Our free Find a Lawyer directory may help you get in touch with an experienced wills and estates lawyer near you.
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