THE Legal Clinic: Making a will

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What is it?

It is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death. It includes a name or names of the executor, to manage the estate until its final distribution.

Why make one?

It gives you control of how your estate will be divided on your death; by appointing an executor, you trust who will divide it. You do not have to be wealth to make a will.

If you are working, for instance, you may have a superannuation, with most funds having a default level of life insurance. This can be a substantial asset. A will lets you ensure that the people you give your property to receive it promptly.

What if I don’t make one?

Dying without a valid will means your property is divided according to a strict legislative formula known as ‘intestacy’.

This formula is seldom appropriate, as it changes with your circumstances rather than your intentions, meaning that you may benefit people you never intended to.

It is not true, however, as is often said, that government takes a deceased person’s property if there is no Will. This only happens in exceptional circumstances, such as where there is no partner or other identifiable relatives.

What is a ‘valid will’?

One that complies with the requirements set out in legislation. To be valid, your will must be: in writing — handwritten, typed, or printed; signed; and witnessed — two adult witnesses (who are not beneficiaries) must be present when you sign. If your will is not executed in strict compliance with these requirements, it will be ‘informal’ – it will be accepted under certain circumstances.

Can I change it?

Yes, you are free to alter your will at any time. It is in your interest to review your will every two or three years (or whenever any major event occurs in your family, your assets, or the taxation laws) to make sure the will is up to date and still reflects your wishes.

Can my will be challenged?

Yes. Beneficiaries who feel they have not been adequately provided for can challenge it.

A will is one of the most important legal documents you can make; it is a false economy to try to do it cheaply and without skilled, professional advice.

Will drafting is a complicated and specialised area of practice, and lawyers need to carefully consider many issues when crafting an effective will for you.

Choose a lawyer with specialist knowledge in Wills and Estates, and expect to pay a moderate fee for it. (Online sources). (

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