How To Make a Will in Australia

What would happen if you passed away suddenly? Would your loved ones know how to handle your property, assets and possessions?

Everyone can benefit from making a will that is legally valid. Do you need to know how to make a will in Australia? Our experienced team has compiled everything you need to know about making your will.

How to Make a Will

How to make a will

To make a will that is valid in Australia, there are a few things to keep in mind:

  • Generally, a will must be in writing. Australian courts have also recently recognised other forms of wills and codicils including a will prepared on an iPhone. However, a special application was needed to prove these were valid, causing stress and costs which could have been avoided by preparing a will in writing.
  • The Queensland Supreme Court is also empowered to make wills on behalf of people. For example, this could come into effect if a person has lost “legal capacity” due to a condition like dementia.
  • There are certain requirements for making a will in Australia. The will must be signed by you and two witnesses. The witnesses should not stand to receive any benefit under the will.

So if you’re wanting to make sure the will you create is easy for your executor to carry out, it’s a good idea to have your will in writing and witnessed by two people who aren’t benefactors of your will.

It might be presented as a typed document, or as a handwritten document. Other types of will exist, for example, oral wills, but these types are not always recongised as valid and are not ideal.

Where can I make a will?

If you’re wondering where to make a will, there are a number of options available to you. These include:

  1. The Public Trustee of Queensland
  2. A law firm
  3. DIY will kits.

If you have any complexities in your will, it’s always best to make your will alongside a qualified expert.

Do you need a lawyer to make a will?

You might be questioning whether you need a lawyer to make a will. While it is possible to make a will without a lawyer, making a will can be complicated, depending on your circumstances. This means you may find it easier to make a will by working with a specialist lawyer.

When deciding whether you need a lawyer to help make your will, consider the following:

Pros

  • A lawyer can provide advice on drafting your will to ensure it is structured in a manner that will ultimately see your wishes effected. This may include advice about inter vivos gifts and testamentary trusts
  • A lawyer can guide you as to the potential ramifications of your intended gifts.
  • A lawyer can provide you with advice about gifts to spouses and children in blended family arrangements

Cons

  • A will drafted by a lawyer usually costs more than a DIY will-kit

Advice provided by a lawyer regarding the structure of your will can safeguard your estate from challenges and may save your loved ones a great deal of stress and expense down the track.

What do I need to make a will?

To make a will in Australia you must first have capacity. Generally, persons of sound mind over the age of 18 years have capacity to make a will. If you are under 18 years or if you are concerned you may not have capacity to make a will, contact us for a free consultation.

When writing a will in Australia, you are required to consider several issues:

  • Decide who to appoint as your Executor or Executors. The Executor is responsible for carrying out your wishes
  • Decide who should inherit your property.
  • If you have children under 18 years of age, who should be appointed as their guardian?
  • If your gift may go to a child or person with a disability, how should their gift be managed? Should a trust be established?

Who can witness a will?

If you are wondering how to make a will legal, you should pay careful attention to who witnesses your will. There are a couple of conditions to observe when choosing your witnesses:

  1. You should ensure there are two witnesses to your will.
  2. The witnesses should not stand to receive any gift from the will.

Following both of these conditions means your will is more likely to be executed as you wish, helping your loved ones manage a difficult time.

Do you need help making your will? Contact our experienced team of estate lawyers to discuss what we can do for you.