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Home | Will, Will Disputes & Estate Law | Making a Will

What is a Will?

A will is a legal document that only operates after your death to direct how your assets should be distributed. A properly drafted, up-to-date will is the only way you can be sure your assets will be dealt with and your loved ones cared for in the way you choose.

Every person should have an up-to-date and valid will. Making your will with us is quicker and easier than you might think.

Making a Will

In order to be considered valid, a will must comply with legal requirements including:

  • That the will is in writing;
  • Has been signed by the person making the will in front of 2 independent and competent witnesses;
  • Be made by a person with testamentary capacity who knows and approves of the contents of the will;
  • Deal with property and appoint executors; and
  • Not have been revoked prior to death.

A will is able to be updated, changed or revoked at any time unless a contract has been entered into to make the will unable to be changed.

The importance of a valid Will

If you die without a valid will, intestacy provisions will automatically apply. If this occurs, your estate may pass to people who you do not wish to benefit and people you do wish to benefit may miss out.

Preparing a valid will with one of our lawyers is the best way to ensure you are aware of all your testamentary options including:

  • Who you want to look after your estate and act as your executor;
  • What items and assets you can leave in your will and to who and when;
  • Payment of debts or liabilities;
  • Whether different types of testamentary trusts may be appropriate;
  • Guardianship of children;
  • Ongoing care and support of pets; and
  • Whether you wish to be cremated or buried.

There are other good reasons you should make your will with a solicitor, including that contemporaneous records of your wishes will be kept, the original will can be independently kept safe and secure, and people cannot tamper with the document without your knowledge. A will made with a solicitor is also not as easily challenged as a homemade or informal will.

Our offices are located in Sydney, Parramatta, Campbelltown, Newcastle, Penrith, Wollongong and Gloucester.

FAQ

What is the difference between a formal and informal will?

What is the difference between a formal and informal will?

A will prepared by a legal professional and which contains all the appropriate parts is generally referred to as a formal will. A formal will declares that it is a will, appoints an executor, disposes of assets and is testamentary in nature.

Informal wills are often made by persons without legal qualifications and often take the form of a document that lacks the required parts, but is otherwise testamentary in nature. For example, a note scribbled on the back of an envelope could be considered an informal will if it names an executor or seeks to dispose of assets.

Informal wills are required to be reviewed by the Supreme Court of New South Wales before they may be admitted to probate. It is not unusual for disputes and contested litigation to result from the preparation or discovery of an informal will.

What is the difference between a valid and invalid will?

What is the difference between a valid and invalid will?

Whether a will is considered to be valid will depend on many factors, including that it meets the requirements of the Succession Act (NSW) 2006, is made by someone over 18 years of age, is in writing, has been correctly witnessed, the person making the will was of sound mind, memory and understanding and the will contains all of the required parts.

An invalid will lacks one or more of the formal and essential requirements and may not be admitted to probate by the Court. If a will is found to be invalid, it has no effect and the estate will be distributed pursuant to an earlier will or in accordance with the rules of intestacy.

What is a testamentary disposition?

What is a testamentary disposition?

This phrase means a gift or legacy of a particular item, asset or interest to a beneficiary under the terms of a will.

Can I ask someone else to write my will for me?

Can I ask someone else to write my will for me?

A person must give the instructions to make their own will and they cannot delegate that power. Other people can prepare or draft a will for someone to sign, however, this can lead to allegations or concerns about undue influence, suspicious circumstances or lack of capacity, particularly if the person who prepares the will is in a position of power over the testator.

Seeing an independent solicitor to discuss, draft and finalise a valid will is always a better option. The lawyer will keep a record of your instructions and also offer to store your will in our safe custody for free.

Who can I name in my will?

Who can I name in my will?

You can name your executor, beneficiaries and minor guardians in your will, although it is important to ensure that people you name in your will are still alive, and that you have made arrangements in your will in the event those people are no longer alive as at the date of your death. For example, if you leave your house to your only child, but your child dies before you and you do not update your will, if your will has been properly drafted, a gift-over provision should still allow your house to be given to another beneficiary of your choosing.

Where should I keep my will?

Where should I keep my will?

Your will is an important legal document. If your will is lost, or you have not told anyone where the original is located, it can be an expensive and time consuming task to try and locate it. Similarly, if you lock your will in a safe but no-one else knows the access code, unnecessary delays can be experienced in trying to administer your estate.

The best option for storing your will, and any prior revoked wills you may have elected to keep, is with your solicitor. It will be stored securely and independently, and a register will be kept of where and when the document was lodged or released.

Turner Freeman Lawyers will offer to store clients' wills for free.

What is a codicil?

What is a codicil?

A codicil can be used to amend or alter part of a will. They were more common when wills were written by hand or typewriter.

What happens if a will is unclear or doesn't make sense?

What happens if a will is unclear or doesn't make sense?

If a will is unclear, ambiguous or cannot be understood by the executor or beneficiaries, disputes and litigation can result. These types of issues are common in informal wills and wills that have been made using will kits.

If an agreement cannot be reached as to what the will provides, the Court may be asked to construe (interpret) or rectify (fix) the will. These types of proceedings are expensive and can take a long time to resolve. In order to avoid these risks, a formal and valid will should be prepared with a solicitor.

Can I leave my superannuation in my will?

Can I leave my superannuation in my will?

Whilst the answer is yes, there are a number of steps that need to be taken in order to ensure you can dispose of any superannuation interests in your will. The reason it can be difficult is because your superannuation is held on trust for you, and you are not free to deal with superannuation as an asset owned exclusively by you.

Your superannuation is not treated as an asset you own and will often be distributed directly to beneficiaries you have either nominated, or to people the Superannuation Trustee has decided should receive the funds.

If you are concerned or unsure about how your superannuation funds will be distributed after your death, you should consult an estate planner.

What else is a will good for?

What else is a will good for?

A will can allow you to set out your wishes for the care of pets, the winding up, distribution or continuation of digital assets, or to provide your executor with your directions for your funeral and burial/cremation.

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