Your LawOnline Will
The comments in these pages apply only to people who live in Australia, and also to people who live outside Australia, but who own property which is located in Australia.
A will lets you say how you want your property to be dealt with when you die. Once you die, everything that you own, and everything that you owe, is called your "estate".
It is said that a will "speaks from the date of death". In preparing your will, you are creating a legally binding document, which, if required, the courts will enforce. What the will says is what, on and after the date of your death, you want to happen to the things that you own.
Your will contains your instructions about what you want done with your property when you die, and how you want to provide for your dependants (spouse, civil union partner, de facto partner, children, grand-children) and possibly for others.
Anyone who is at least 18 years old can make a will.
The LawOnline system may not be used to make a will for a person who has not reached 18 years of age at the time that the will is made.
A person who is under 18, in some States of Australia, may make a will if he or she is, or has been married, or is about to be married. Each State and Territory in Australia has its own law on this issue.
In all States and Territories, except Western Australia, a person who is under 18 years of age but who is married, may make a will. Also, a person who is under 18 years of age who is engaged to be married may make a will in contemplation of the marriage, except in Western Australia where it is not lawful. Wills made in contemplation of marriage by someone who is under 18 years of age will only be valid if the marriage goes ahead.
The courts of every State and Territory have the power to declare a will is valid, even though it was made by someone who was under 18 years of age at the time.
If there is any doubt about your competence to make a will, for example, because you are suffering from a mental illness, you would be wise to take legal and medical advice at the time that you want to make your will, and to have a proper record made of any advice that you are given. If the advice is that you are not competent, then it is best to postpone the making of the will until you have advice that you are well enough to do so.
Even if you don't own much property, it is wise to have a will. Probably the best reason to have a will is to save your family some of the trouble and expense that occurs when a person dies without leaving a will It can add considerably to the time. expense and trouble that is involved in tidying up the affairs of a person who dies, if the person dies without leaving a will.
You should make a will when you marry or enter into a de facto relationship. When you have children, it is especially important to have a will.
If you marry, any will that you have made before that event is automatically revoked (cancelled), unless it was made in contemplation of that particular marriage (which is best explicitly stated in the will itself). This applies even if you marry someone who is a beneficiary under your existing will.
You should revise your will if a relationship ends. If you separate from your spouse with the intention of ending the marriage provisions in your will relating to your spouse or partner will remain valid until you either. change your will. or are legally divorced.
A separation agreement or a binding financial agreement does not revoke your will. You have to change your will if you want to exclude your spouse or partner before you divorce.
When you legally divorce the effect of the divorce will depend on where in Australia you live.
If you live in NSW, the ACT, Vic. OLD. SA or the NT. the law treats any provisions in your will in much the same way as if your former spouse or partner had died before you do. Every appointment of your former partner or spouse as trustee, executor, guardian is invalid. Every provision that you make to benefit your former spouse or partner is invalid unless you. as the will-maker, have made it clear in your will that you want them to remain valid.
Not necessarily, but it gives you more control over the destination of your property than dying without a will does.
Each State has its own legislation which deals with the rights of persons to challenge the wills of deceased persons. Challenges usually arise where someone considers that the deceased person had a moral obligation to provide for the claimant, but has not done so. An alternative type of claim is that the deceased person made some sort of promise to make provision for the claimant in the deceased person's will, which he or she has not honoured. If the existence of such a promise and its details can be proved, the courts may make an order that the promise be honoured.
If there is a prospect that your will might be challenged, it is important to get detailed legal advice on how to deal with that situation in your will, in order to minimise the chances of any challenge to your will being successful. If that is the case, you would be better not to use the LawOnlne automated service to prepare your will, and it would be better if you took face to face advice.
If you die without leaving a will, you are said to have died "intestate". In that case, the statute in the State in which you live specifies how your property will be distributed. This will usually be to a surviving spouse or partner and your immediate family, or to close relatives, in set proportions.
In NSW and Qld it is called the Succession Act, and in WA it is the Administration Act, in SA it is the Administration and Probate Act and in the other States and Territories, this is called the Administration and Probate Act. The law is not uniform.
What is provided in the applicable statute may not be what you would have wished or what your family wants, and it could involve them and your estate in the cost and effort of making a claim under one or more of the Acts described in the previous paragraph. If there are no relatives who are in the categories listed in the statute, then your estate goes to the State.
Your lawyer or a family member can still administer your estate if you have not made a will, but only according to the relevant statute. It is usually much more expensive and time consuming to do this, than it would have been if you had left a valid will.
Because of the importance of your will, the law says it must be made in a prescribed manner. The LawOnline system ensures that you will make a valid will, as long as you carefully follow all of the advice that you are given by the LawOnline system and carefully follow all of the steps that you are advised to take.
For each will, there can only be one person who's will is being made. Two people cannot make a single will together. They must each make separate wills.
If you use an alias or something other than the name that appears on your birth certificate, then it is best to include both your proper full name and your alias when you are filling in the form. For example, if your proper name is John William McDonald but everyone knows you as "Macca", then insert "John William McDonald also known as Macca", in the form where you are asked for your full and correct name.
Your will should name at least one executor. In the LawOnline will the executor is called an "executor and trustee". While the role of an "executor" and that of a "trustee" are somewhat different, in most cases it is necessary to have both. In the LawOnline will, every executor is called, and is appointed, in both roles. They are called "executors and trustees". This is perfectly normal, and is a usual thing to do.
It is usual for wills to make adequate provision for the will-maker's dependants (spouse, partner, children, and, sometimes, parents. If there are any dependants who have special needs, specific provision is often made for that person). If the will doesn't make these sorts of provisions, then those persons who are not provided for may wish to make a claim on your estate.
A gift to one of your children who dies before you will, in most States and Territories, pass automatically to their child (that is, your grandchild) unless your will says otherwise. However, the statutory provisions, which are able to be varied by express provisions in the will, are not all satisfactory. For that reason, the standard provision in the LawOnline will is that any provision that is made for any child of the will-maker is passed on to that child's children, if the child dies before the will-maker but dies leaving a child or children. If, however, the deceased child does not die leaving a child or children, then that child's share will be added to the share of the beneficiaries who are entitled to what is to be divided after any specific bequests are distributed.
Your will might also say that you want someone to inherit specific personal possessions, possibly in addition to a share of the rest of your estate. There are possible issues in leaving specific items of property to someone. By the time that the will-maker dies, the item might have been sold or lost or damaged. If the item given is valuable, this can give rise to unintended capital gains tax consequences.
Some people make a provision in their will asking their executor to observe any list they leave about who is to receive particularly valuable or treasured items. If this is handled properly, you may be able to update the list without changing your will. If you do make such a provision and leave a list, be careful not to attach it to your will, but rather just leave it with the will. Attaching anything to a will can cause problems when the time comes to obtain probate, i.e., the approval of the court to administer the will after your death.
An executor is a responsible person who will see that your wishes, as expressed in your will, are carried out, and who will administer your estate until it is properly distributed. Most executors will consult a lawyer who can assist the executor in their duties, which may include paying debts, selling property and distributing the estate in terms of the will. If any claims against the estate are made during this process, the lawyer can advise the executor on how to deal with that issue. Administering an estate usually involves obtaining authority to do so from the court. That authority is called "probate".
An executor can also be named as a beneficiary in your will.
Most people who are married, or in a permanent relationship, appoint their spouse or partner as the sole executor and trustee, and leave everything to their spouse or partner, if they survive the will-maker. Most will makers also provide that if their spouse or partner is not living at the date of death of the will-maker, then they appoint two (2) persons to be their executors and trustees instead of their deceased spouse or partner. The great majority of wills are made that way.
Administering an estate can involve a lot of work so it is advisable that you ensure that anyone who is to be appointed is willing to take on the role. The standard provision in the LawOnline will authorises an executor or trustee to apply to the court for an award of commission for their work and effort, if the court thinks that it is appropriate to make such an award.
If some or all of the assets left in your will are left to one or more beneficiaries, who because of their young age or inability, are unable to manage the property, then your executors and trustees will do the work, and will do so on behalf of the beneficiary concerned.
If an executor and trustee of your estate dies, or becomes incapable or unwilling to act, then any remaining trustee and executor who you have appointed will generally be able to continue to act alone. If the last surviving of your trustees and executors dies, then the person or persons who are the executors and trustees or the deceased trustee's estate will step into the role as trustee and executor of your estate.
If you have created a family trust or charitable trust during your lifetime, then any assets that you have transferred to the trustee or trustees of that family trust or charitable trust will no longer be part of your estate for the purposes of your will, and will not be able to be administered by the trustees and executors of your will.
Any property you own jointly with someone else automatically, upon your death, becomes the property of the surviving person with whom you own it. Your will does not apply to any property that is held in this way. An example is where you own your house jointly with your spouse. If you die before your spouse, the ownership of your interest in the house automatically transfers to your spouse, and it can't be effectively dealt with in your will.
If you own property with others in equal or unequal shares, rather than jointly, on your death, your share becomes part of your estate and is dealt with as your will directs.
Will-makers who have children may appoint a guardian to take over some responsibilities for their children if they die. Guardians appointed under a will are called testamentary guardians. Testamentary guardians do not necessarily provide the day to day care for a child, but are responsible for making the key decisions concerning the upbringing of the child.
While you are not required to name a testamentary guardian for your dependent children, it is a good idea to include one in your will. This is especially important if you are your children's sole guardian.
Obviously, the appointment of a guardian doesn't still have effect in respect of any child who, by the time that you die, has reached 18 years of age.
You can set out any specific funeral arrangements that you want, although those organising your funeral are not legally bound to follow those instructions.
You are best to simply state any preference that you have for burial or cremation and to leave any detailed wishes about any ceremony with your family, by discussing it with them directly, or in a separate note or letter.
It can be a matter of relief to some people to know what it is that you wanted at your funeral or memorial service or, if you did or did not want anything in particular.
It is best not to make detailed provisions in your will for any funeral arrangements. If you wish to make express provisions for a funeral or celebration, it is best to let your relatives, or other appropriate people, know the details.
How Can I Distribute My Property?
There are two broad approaches that you can take to dealing with your property.
- You can make provision for all of your property to be provided to one or more people, whatever your property happens to be when you die, e.g., "to divide my property equally between my sisters", or
- You can make provision for specific items of your property, or things like your personal effects and jewellery to go to particular people, with anything else to be given to, or divided among certain people, e.g., your children.
Beneficiaries are the people who inherit your property. They benefit from gifts in your will. You can name anyone and any organisation you like as a beneficiary, but remember, there are circumstances in which people can challenge your will.
For instance, it is usual to provide for your spouse or partner and children. If you don't, they may be able to bring a claim under one of the relevant statutes. Some people also provide expressly for grandchildren and, in some cases, parents.
If you have promised to leave a certain item or some money to someone who has helped you, but you don't make provision for that in your will, the person can make a claim, and may succeed in obtaining an order that some provision be made for him or her out of your estate.
Your will can also include a bequest or a gift to charity. This might be a specific gift, such as an amount of money or shares or a gift of any undistributed residue. A residuary gift would be of anything that is not effectively dealt with by other provisions in your will. For example, if you were to leave everything to your only relative, say your sister, but she dies before she becomes entitled to receive what your will provides. If you have provided that the undistributed residue is to go to a particular charity, then the charity will receive everything.
A cash bequest is an amount of money that you provide to be paid to someone named in your will. It is not paid until after you have died. It is the same as a gift, but it is a gift that is not made by you during your lifetime. It is made after you have gone.
You can change your mind about the cash bequest at any time while you are able to change your will. You can name an individual person or a charity, but typically it will be a cash amount to be paid out of your estate to a relative or friend who you want to single out for a special cash gift after you die.
If you have some specific items (e.g., a painting or a watch or an item of jewellery) that you wish to leave to a named person, then you can carefully describe the item and the person to whom you want to leave it. Be careful to ensure that there is no doubt about which item you are referring to. Don't leave any doubt about it. For example, if you have 2 paintings by some well-known painter make sure that you identify the one that you mean by describing the scene or what is depicted in the painting. Just saying my painting by xyz is not enough if you have more than one of them.
On the other hand, if you want to leave all of your personal effects or your clothing and jewellery, then use the next step under the heading "Effects", to do that.
Here you can indicate that you want all of your clothing and jewellery to go to one named person. For example "I leave all of my clothing and jewellery to my niece Jane Doe".
You can also prepare a list of items which you give to your trustee or leave with your will. In the list you can name items and who you want each item to go to. This is very useful if you want to change your mind about what you leave to named people, from time to time. You might break or lose an item, or you might buy something new. Just update the list, even in handwriting if you wish to, and your executor will make sure that the items are distributed after your death.
It is best to use this sort of list for items of personal property and not for really valuable items.
This is where you make provision for everything other than any items that you have given to named people. Your estate is everything that you own, wherever it is located in the country where you live. If you own property in another country, you should also make a will in that country. Your estate is what you own at the date of your death.
If you have not made a provision elsewhere in your will for an amount of cash or an item of your property like a watch or other jewellery to go to a named person, then the expressions “estate” and “property” refer to everything that you own at the date of your death. You do not need in your will to list all of your property.
Many families today are second or third marriages and many couples who have children don't marry. When a will-maker is providing in his or her will or trust for children who are not their biological children, it can be confusing to know whether any particular child is meant to be included or not. Similarly, there are children who do not have a relationship with their biological parents. In any of these circumstances it is not easy to say whether a provision in a will for "my children" is meant to include children who are born in these circumstances or not.
If your family circumstances are that all of your children are born within a single marriage and there is no doubt that the expression "my children" means the daughters and sons who were born within your marriage, then it is perfectly in order for you to refer to "my children" in your will or trust. If that is not the case and you wish to make a provision for a stepchild or a child of yours who has been adopted by another person or a child born who has not been part of your family, then it is best that you name the child expressly in your will or trust, and make clear what it is that you are providing for that child.
It is best for any witness to your will not to be a beneficiary. You should not have anyone who might receive a benefit under your will, to witness your signature of it. If someone who might receive a benefit does witness your will, they will not be allowed to receive the benefit.
Usually you cannot leave any gift to a person who witnesses your will, or to any spouse, civil union partner or de facto partner of a witness. However, if you do leave such a gift, it may, in some States and Territories, be declared valid by the court if those who would otherwise benefit agree, or if the court is satisfied that the will-maker knew and approved of the gift, and made it voluntarily. The safest course of action is to ensure that a beneficiary or a spouse, child or other relative of a beneficiary does not act as a witness to the signing of the will.
A will does not prevent you from selling or giving away anything or dealing with your property in any way you choose during your lifetime. Your will takes effect from the date of your death, not from when you sign it.
If you have property outside of Australia, it may be advisable to have separate wills for each country in which you have assets. Administrative difficulties can arise where the original will is held in one country and there are assets in another.
A will which is intended to operate in a foreign country must be formally valid in, and its provisions must be compatible with, the law of the foreign country.
The law of the foreign country might differ from our own in several respects:
- the law of a foreign country may provide that the spouse or the children of the will-maker take a minimum fixed share of the estate, and that this cannot be reduced by will;
- guardianship arrangements for children will almost certainly differ from ours;
- the identity and role of the executor may differ from those in Australia;
- the law relating to de facto spouses and civil union partners, adopted children and illegitimate children could well be different; and
- the taxation laws are likely to be different from our own.
It may be necessary to seek advice from a lawyer who practises in the foreign jurisdiction or from an Australian who has knowledge of the law in that foreign jurisdiction.
You can revoke or cancel your will at any time by:
- making a new will;
- declaring in writing that you revoke your existing will;
- destroying your will with the intention of revoking it. The simplest and most effective way to do this is to tear it into pieces and throw it away or burn it;
- otherwise showing an intention to revoke it, for example by writing across the will that it is revoked.
When you make a new will, you should start by inserting a clause revoking all previous wills. That is what the LawOnline will forms provide.
It is a good idea to tell anyone who is holding a previous will if it is no longer current. You should also consider advising any previous executors and trustees if they have been replaced, although it is not legally necessary for you to do so.
You should review your will whenever your life circumstances change, for example,
- if you marry or enter into a civil union or de facto relationship, or
- when such a relationship ends; or
- if any trustee or significant beneficiary named in the will dies; or
- if your assets or debts change significantly.
It may be that your will does not need changing, but you should think about whether your will still makes the provisions that you want, or whether it may have become invalid because of a new marriage or civil union or divorced.
You should also review your will if the law changes. Some major changes in recent years have affected wills.
You should store your will in a safe place, where it is not likely to be lost or damaged. Remember that paper is subject to decay from damp, mould and insect attack.
You should tell your executors and trustees, a family member or a friend where your will is stored.
If you do decide to give anyone a copy of your will, remember to either tell that person if your will is changed or to give the same person a copy of any new will, if you make a new one. If you don't do this, there is a danger that the old will might be mistaken for your current will after you die.
If the original signed copy of a will cannot be found after your death, the court may approve a copy. It is necessary to prove that the will was signed, was not revoked and that the original has been accidentally lost or destroyed.
If no will can be found after you die, or if there is no evidence that the will was signed and not revoked, then you will be deemed to have died intestate, and your estate will be handled according to the provisions of the relevant statute in the State or Territory in which you live.
A number of things can make your will, or parts of it, invalid. These include:
- if you have married, entered a civil union or ended a marriage or civil union with a court order, since the will was made;
- if the will was not signed and witnessed properly;
- if there was some undue pressure or influence on you to dispose of your property in a certain way;
- if you are proved to have not been capable of managing your own affairs, or were under-age when you made the will.
Parts of a will may be invalid if they are meaningless, ambiguous or uncertain. However, the court can use external evidence, including evidence of the your testamentary intentions, to interpret words in a will to determine their meaning.
If you did not sign the will or if mistakes were made in the witnessing of the will, the court can still declare that your will is valid, if it considers that the document expresses your testamentary intentions. The court can correct a will containing a clerical error, or if the will does not give effect to your instructions. However, the court processes which are involved in having the court determine that an unsigned will is valid or in interpreting a will which contains errors are likely to be both time consuming and expensive.
It is possible for two people to make mutual wills, and for each to make promises to each other, and to agree that they will make some specific provision in each of their wills, and will not later make changes that fail to keep the agreement. The court, if the existence of the promise can be proved, will make sure that any person who would have received a benefit if the promise had been kept, will receive it.
A typical example would be de facto partners who have lived together and have accumulated valuable property, some of which they each own separately. They make mutual wills in which they agree to leave their share in their property to the other, if he or she survives, but if not, then to leave something to a family member of one or other of the partners. They promise to each other that after the death of one of them, the survivor will not change his or her will in a way that doesn't make the same provisions for the family member. After the death of the first to die, the survivor changes his or her will to remove provision for the deceased person's family member. In this case, if the family member is able to prove that the promise was made, the court will make sure that the family member receives what was agreed.
Proving the existence of the promise can be difficult. If you are contemplating making wills on the basis of mutual promises that you wish to be binding, you should have the mutual promises reduced to writing in a separate document and signed by both parties. It would be best to have a deed prepared for you by a lawyer to provide a proper and binding record of the agreement.
Federal and State death duties and succession taxes are no longer a feature of the Australian tax system. The tax that is most likely to be relevant when you are making a will is capital gains tax ("CGT"")
The relevant tax statute says "CGT affects your income tax liability because your assessable income includes your net capital gain for the income year." In other words, if you own an asset that grows in value, the gain in value is treated as if it was part of your taxable income. There are exceptions, exemptions and rights to delay payment, and there are many circumstances of things that happen (known as "CGT Events") which trigger a liability to pay CGT.
When you are making your will, you should also think about preparing an enduring power of attorney. This is a way of nominating and empowering someone who can manage your care and your property, if you become incapacitated through accident or illness. Enduring powers of attorney must be made before you become incapacitated.
You should also when you are making your will, consider appointing someone to be your enduring guardian. An enduring guardian can make medical, health care and treatment decisions for you, if you become unable to do so for yourself.
Enduring powers of attorney in relation to property can come into effect immediately, and will continue to apply if you become incapacitated. The appointment of an enduring guardian in relation to your personal care and welfare will only come into effect only if and when you are incapacitated.
A living will or advance care directive, (they are different names for largely the same thing) is a written or oral instruction made while you are in good physical and mental health. It explains what you would want to happen should you suffer an illness or accident that leaves you incompetent to make decisions about your health care. It can also be called a "statement of wishes regarding health treatment". A living will or advance care directive is not an alternative to an enduring power of attorney or the appointment of an enduring guardian. Enduring appointments give the person who is appointed the legal power to act for you in whatever way they think fit, while you are alive but incapacitated.
The living will or advance directive may not be legally effective, but can give your family and the medical professionals who are responsible for your treatment an indication of your wishes. If it covers the particular circumstances that have arisen and expresses your true wishes, then it would be lawful to rely on the directive and possibly unlawful to ignore it.
There are several guides to advance care directives that can be readily found by an Australian focussed internet search for the expression "advance care directive".
There are differing views about advance care directives. Some say that they know exactly how they wish to be treated if they are very unwell. Others prefer to leave the decision to medical professionals and family. You should make your own decision about whether or not to have an advanced care directive. It is for some people, not an easy decision to make.
The advice in these pages was last reviewed on and is correct as at 1 July 2022.