5 Key Tips for Making a Valid Will in Australia: Your Essential Guide

A last Will is one of the most important documents you will ever sign. Preparing a legally valid document during your life allows you to reduce the emotional stress and financial burden often associated with death. Most importantly, writing a Will gives you the opportunity to provide for and protect the people you care about most.

Failure to leave a legally valid Will could result in your assets being distributed according to a fixed formula determined by the legislation of Western Australia, known as the rules of intestacy. It is unlikely this formula will reflect your final wishes. This is why estate planning and understanding the legal requirements of a valid Will is essential to avoid dying intestate.

1. Issues to Consider Prior to Writing Your Will

Determine What Assets and Finances You Own

Before you write a Will, it is important to formulate a comprehensive list of all finances, liabilities, and assets.

• Debts: May include mortgages, credit cards, or personal loans.
• Assets: May include property, bank accounts, motor vehicles, cash, jewellery, or artwork.

You must determine whether you have appropriate ownership of relevant assets. For example, if you own a house as a joint tenant, you cannot dispose of this house in your Will if you are the first to die, as it will automatically pass to the surviving co-owner.

Who are the Beneficiaries?

A person, company, or organisation you leave your assets to is known as a beneficiary. While you may elect to distribute your assets to whoever you choose, you should be aware of the Family Provision Act 1972. This legislation allows certain people to claim a share of your estate if they believe they have not been adequately provided for, which can lead to costly disputes.

The Crucial Role of Executor

An executor is responsible for administering your estate in accordance with your Will. The role of executor can be filled by a family member, a friend, or a professional such as a lawyer or accountant. When choosing, consider if they:

• Have the relevant skills and experience.
• Are aware of their legal responsibilities.
• Have adequate time to fulfil their duties.

2. Requirements for Writing a Will in Australia

Every Will is unique and should be tailored to an individual’s specific circumstances. In Australia, for a Will to be considered valid, it must comply with various legal formalities.

Essential Legal Requirements

Generally, you must ensure:

• Testamentary Capacity: You are over 18 and understand the implications of the document.
• Written Form: Your wishes must be in writing (not just a verbal promise).
• Execution: The Will must be signed and dated with two adult witnesses present.

Professional Assistance vs. DIY Forms

While you can find “Will kits” or forms online, these often lead to errors that render the document invalid. Many people also consider the Public Trustee in Perth, however it is recommended to compare their fees and charges against private legal representation to ensure you are getting the best value for your estate.

3. Protecting Your Family and Future Interests

Incorporating an Enduring Power of Attorney

Estate planning is about more than just what happens after you pass; it is about managing your life while you are still here. We highly recommend discussing a Power of Attorney with your lawyer. This document allows a trusted person to manage your financial affairs if you lose the capacity to do so yourself, providing a safety net for your family and your finances.

4. When to Update Your Will

Major life events result in a change of circumstances which may not be adequately reflected in your current Will. You should review your Will every 2–4 years. Common triggers for an update include:

• Marriage or Divorce (which automatically revokes a Will in many cases).
• The birth of children or grandchildren.
• The death of a beneficiary or executor.
• Significant changes in your finances or property ownership.

If your circumstances change, we recommend you prepare a new Will rather than creating a “codicil”. A codicil is a legal document used to alter earlier Wills, but they often cause confusion and legal disputes.

5. Store Your Important Documents Safely

Make sure you store your Will in a secure location and inform your executor or lawyer of its whereabouts. Whether it is in a fireproof safe at home or held in a secure document storage facility in Perth, accessibility for your executor is key.

Disclaimer

This article provides general information regarding writing a Will. We recommend seeking professional legal advice from a lawyer experienced in Wills and estate planning to discuss your specific circumstances.

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If you require specific advice regarding your estate and succession matters, please contact our team to arrange an Introductory Consultation.