In case you are wondering ‘how do I make a Will in Australia’ it is likely that you have realised that you want to distribute your estates properly, according to your wishes and intentions.
Before we explore this question, let’s understand key terms associated with Wills in Australia. The Will-maker is often called the testator; the parties who are entitled to receive a portion of the estate are called beneficiaries; and the person nominated to administer the distribution of estate is the executor.
Generally, the question of ‘how do I make a Will in Australia’ brings with it a lot of anxiety, and often overwhelms the person looking to make a Will. This is natural since thinking about your own demise leads to a feeling of uneasiness.
However, it is important to realise that making a Will is the only way to ensure that your wishes with regards to property and estate distribution are fulfilled. When a person dies without leaving a valid Will in place (dying intestate), they will not be able to ensure that their wishes are fulfilled.
This is why, thinking of making a Will, and reading up about ‘how do I make a Will in Australia’ is a good first step. The aim of this article is to answer the question of ‘how do I make a Will in Australia’ by providing a brief guide to do so.
How Do I Make A Will In Australia: Primary Steps
Before getting into the technical details, here are a few basic, or primary tips that you need to keep in mind if you wish to make a Will in Australia.
- Before sitting down and drafting your Will, check all assets thoroughly, and do your research well. You can also consider looking at some sample Wills online which can give you an idea about making your Will.
- Increasingly, people have preferred to use Do It Yourself or DIY kits for making Wills. While this is a valid method, it is advisable to consult any Wills & Estate Planning solicitors who can check your DIY Will. Alternatively, you can approach a solicitor and use their professional guidance to make a Will in Australia.
- Each state in Australia has different legal requirements which you need to meet. For instance, in NSW the NSW Trustee & Guardian details the legal requirements.
- Whether you are using a DIY kit or are seeking the help of a solicitor, please make sure that you state your intentions clearly, and detail your wishes explicitly. This is because, any minor mistake can cause great confusions and delays in distribution of the assets in the future.
For those who are wondering ‘how to make a Will in Australia’, it is important to ensure that you meet the eligibility requirements to make a valid Will. The requirements include:
- The person who wishes to make a Will must be over 18 years of age (unless he/she is married)
- Importantly, the Will maker needs to have testamentary capacity at the time of making the Will.
What Is Testamentary Capacity?
Testamentary capacity refers to the person’s mental ability to comprehend the Will that they are creating, and/or altering. There are certain factors that are considered when determining if the testator has testamentary capacity:
- If the testator knows that they are executing a Will, and understands the legal effects of doing so;
- If the testator knows the general nature and extent of their property;
- If the testator is aware about the people who would generally benefit from their estate; and
- If the testator is not prevented by any mental illness or impairment in reaching rational decisions about who is to benefit from their Will.
According to Section 18 of the Succession Act 2006 (NSW), if the Supreme Court of New South Wales determines that the person did not have testamentary capacity at the time of making the Will, it will be set aside.
How Do I Make A Will In Australia: Information You Need To Gather
Before you start making your Will, make sure that you collect certain important information, and keep it handy. You will need:
- A comprehensive list of your assets, which includes property, bank accounts, stock, investments, foreign investments, super, and any other asset.
- The full names and addresses of your beneficiaries.
- The full names and details of the person or people you wish to appoint as the executors.
- Detailed explanation on your funeral wishes – including the details if it is pre-arranged; or detailing your wishes about what you prefer for the funeral.
Steps To Follow
Once you have gathered the above information, and checked your eligibility, these are the steps you or anyone who is wondering ‘how do I make a Will in Australia’ needs to follow.
- Title the document as ‘Last Will and Testament’ and add the date, along with your full name, address and occupation and all other relevant details.
- List the name of the executors, along with their addresses and their relationship to you.
- List the name of any alternate executors in case the primary executors are not available.
- List all non-monetary gifts along with names of beneficiaries who will receive them.
- List any monetary gifts along with beneficiaries who will receive them.
- List the name of the primary beneficiary including their address and relationship to you.
- If you have children, appoint guardians and note their full details including address.
- Provide names of two witnesses, including full details like addresses.
- Sign your Will, and initial each page while your solicitor and witness is present.
- Lastly, have relevant parties like solicitor and witness sign the Will as well.
JB Solicitors’ Legal Guidance
At JB Solicitors, our Wills and Estate Planning lawyers can provide you with efficient legal guidance in case you are wondering ‘how do I make a Will in Australia.’ Our fixed-fee pricing for all legal services will give you a clear sense of the costs from the start.
Contact our experienced and friendly lawyers to gain more information on the question ‘how do I make a Will in Australia.’