Partner at Cavell Leitch Law
Partner at Clark Boyce Lawyers
How to make a will
Why make a will?
There are many good reasons for making a will. A will records who you (the "testator") wish to benefit from your estate (that is, your assets). You can provide for people - such as friends - who would not be entitled to anything from your estate if you died without a will.
If you die without a will (called dying "intestate"), the law dictates who will receive your assets after you die: see How to deal with a relative dying without a will.
What should go in the will?
The most important things to provide for in your will are who will be your executors, and who will be the beneficiaries of your assets.
In making your will, you should consider any future children you may have, and provide for them in your will. You should also consider how you would like your property to be distributed should your spouse or partner die at the same time as you.
It is also possible in a will to forgive any debts owed to you.
Aside from these matters, wills commonly provide for such things as:
- particular funeral arrangements, such as whether you wish to buried or cremated. These wishes are not strictly binding on the executor, but they will generally be followed: (see How to arrange a funeral)
- donation of body parts for medical use
- who is to look after your dependant children (this is not binding)
Appointing an executor
You should consider who you want to be the executor of your will (the person that your will appoints to manage and distribute your estate). The executors will be in charge of carrying out your wishes, so they should be responsible and trustworthy.
It is preferable that you appoint two people to be executors, in case one of them dies before you do.
What are the formal requirements for a valid will?
To be legally valid, a will must be:
- in writing
- signed at the end by you, the testator
- witnessed by two other people who are with the testator (the two witnesses must both be present when you sign, and you must also witness each of their signatures; it is usual, though not strictly essential, for the two witnesses to sign in each other's presence)
- intended by you to take effect as a will
The two witnesses should preferably be at least 20 years old.
Witnesses cannot be beneficiaries under the will, and nor can the spouse or civil union or de facto partner of a witness. If they are beneficiaries, this does not make the will invalid, but they are not entitled to receive anything under the will.
Do I need a lawyer to draw up the will?
The will need not be drafted by a lawyer. Printed forms for drawing up your own will are available from major stationery stores.
However, the cost of getting a lawyer to draw up your will are relatively small. Further, if the will is relatively straightforward, some law firms may not charge for this service. In any event, even a small charge would be cheap compared to the problems that can arise if a will is badly drafted and therefore unclear, or if the will is invalid because it has not been signed and witnessed properly.
What if I make a spoken promise to provide for someone in my will?
A will must be in writing: a spoken will is not binding. However, if you promise to provide for someone in your will in return for services that he or she has performed for you (for example, looking after you while you were sick), that person may bring a claim against your estate under the LAW REFORM TESTAMENTARY (PROMISES) ACT 1949. For more details, see How to contest a will.
Can I change my will after I've made it?
Yes, you can do this either by making a new will or by adding a "codicil" (an amendment) to the will: see How to change a will.
Can my will be challenged?
Assuming your will can't be challenged as being legally invalid (that is, it was properly witnessed and so on), it may still be able to be challenged after your death by:
- a close relative who feels you have not provided for them adequately (under the FAMILY PROTECTION ACT 1955)
- someone claiming that, in return for services they provided, you promised to provide for them in your will but did not do so (under the LAW REFORM (TESTAMENTARY PROMISES) ACT 1949)
- your spouse or partner if they want to have your relationship property divided under the equal-sharing rules in the PROPERTY (RELATIONSHIPS) ACT 1976
These are explained in detail in How to contest a will.
Establishing a family trust
If you are concerned about whether your children will benefit under your will if you leave everything to your spouse, you can establish a family trust in your will to ensure that your children's needs will be met (see How to establish a trust).
- Badly drafted wills can lead to much confusion after the maker of the will has died, and you should therefore try to be as clear as possible in stating your intentions in the will. Obtaining the services of a lawyer will greatly reduce the likelihood of any difficulties to do with the validity or the interpretation of your will.