Will & Estate Planning - Making a Will

Are there formalities?

Wills don't have to be prepared by lawyers, nor do they need to be written on special paper using legal jargon. One of the simplest and shortest wills is recorded in an English court case: "All to mother" was all it said, and the court decided that was good enough!

But there are a number of formal requirements. Some of these are:

  • A will must be in writing (hand-written or typed).
  • You must sign at the end of the will and preferably at the bottom of each page.
  • The two people who see you sign must witness your signature. They must also be together when they sign as your witnesses. Note, make sure that your witnesses aren't beneficiaries.

One of the traps that some people fall into is that they make a list of belongings they want left to certain people and it is not part of the will. Even though the list may be useful, unless it is part of the will it may not be enforceable. You could end up with your children spending thousands in legal fees just fighting over granny's side-board which is worth $500!

What if I get it wrong?

In some States a will can be verified by the courts, even if you get some of the formalities wrong, as long as there is substantial compliance with certain formalities and the court is satisfied that the will expresses the intention of the person.


Can I do it myself?

There are a number of do-it-yourself kits available on the market that can help you, but keep in mind that the wills in these kits may not suit your purposes.

If you make a will on your own, it's not a bad idea to at least get it checked by a lawyer. Remember, a will is one of the most important documents that you sign in your lifetime.

A badly prepared or designed will can mean that:

  • assets are not distributed the way you would have wanted;
  • property is not controlled in the way you would have wanted;
  • assets are left exposed to creditors;
  • tax advantages are lost, etc.

Using a lawyer

Most lawyers make wills, but some lawyers are experienced in this and offer related services such as estate planning. Some are specialists in this area.

There are many reasons why you should use a lawyer to do your will. It all depends on your own circumstances. Some of the reasons for using a lawyer are:

  • there are a lot of people you want to leave your belongings to;
  • you have young children or children with a disability;
  • you own assets with another person, such as a house or you have joint bank accounts;
  • you have a family business;
  • you have assets that are located interstate or overseas;
  • you want to protect your estate in circumstances such as a beneficiary divorcing etc (see the “Estate Planning” factsheet);
  • you receive income from a trust or a family company, or you have an involvement in a trust or a family company;
  • you want to leave someone out of the will;
  • you are interested in minimising any taxes that may have to be paid on your estate etc.

It’s especially important to see a lawyer if you want to disinherit someone who would, in normal circumstances, be entitled to a share of your assets. Ask yourself – “Is there anyone that might think that they should have gotten something under my will and they are not getting anything? Is there is anyone who might think they should be getting more than they are?”

Using a trustee company

Trustee companies (either statutory or private) are an alternative. Be careful if you are offered a “free” will on the basis that the company is named the executor (or co-executor) and collects a fee. Make sure you know what the charges will be.

Where to keep your will?

Keep your will in a safe place. If a lawyer makes the will, ask them to keep it at their office and to give you a copy. They will usually do this for free.

You can also ask the bank to keep the will for you.

Make a copy of the will, give it to your executor(s) and tell them where the original is. If you don't want the executor(s) to know the contents of your will, place it in a sealed envelope before you give it to them.

Last Updated – April 2010