Who can write a will?
Anyone over the age of 18 who has testamentary capacity can make a Will.
A person making a Will, known as a Testator or Testatrix, must understand what a Will is and the effects of a Will, understand what assets they have and understand the claims upon which they ought to give effect.
In certain circumstances it is possible for someone with a mental condition eg dementia to make a Will if they have capacity at the time the Will is made. If there are doubts as to someone’s mental capacity an assessment will need to be made as to whether the person has testamentary capacity and this may mean medical reports are required.
In New South Wales, if a person lacks testamentary capacity there are provisions in the Succession Act 2006 enabling the Court to make a Will for a person who does not have testamentary capacity. There are similar provisions in the other Australian states and territories.
In very limited circumstances, minors can make a Will and there are legislative provisions in this regard.
What do I need to know before writing a will?
Before writing a Will you need to consider what your estate comprises ie assets in your personal name. A Will does not cover superannuation and life insurance and binding nominations should be in place in respect of those assets.
You then need to consider who you wish to appoint as your Executor. The Executor is responsible for administering your Estate according to your Will and making your funeral arrangements. The Executor also deals with any disputes regarding your Estate.
It is then necessary to decide who you wish to give your assets to. You should consider whether there are any specific gifts you wish to make or whether you want your whole estate distributed between a number of beneficiaries eg whole estate to spouse or to children if your spouse does not survive you.
If you intend to exclude someone from a Will eg an estranged child it is important to obtain legal advice regarding any rights the excluded person may have to make a claim against your estate.
Do laws for will writing differ between states in Australia?
The basic principles are the same for all States and Territories of Australian and a Will made in Australia will be valid for all Australian assets, however, there are some differences in relation to the formalities of a Will such as witnesses to a Will or minors who wish to make a Will. It is important to obtain legal advice from a lawyer in the State in which you live to ensure the formal requirements are complied with. Turner Freeman has offices in New South Wales, Queensland, Western Australia and South Australia to assist you.
If you have assets in a foreign country it is important to also have a Will which complies with the laws in the country in which the assets are held.