Wills and Estate in Australia - what you need to know

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The laws regarding Wills and Estates vary depending on where you are in the world, and what may have been the law in your home country may not apply in Australia. Even if your Will was legal and valid in your country of birth, it may be invalid based on the particular laws regarding Wills and Estates in Australia.

Below are four key areas you need to consider if you’ve never written a Will in Australia, or if you have a Will written while living overseas, to ensure you are covered by a legally binding Will.

The Testator: Legal Age, Mental Capacity and Undue Influence

In Australia, the “Testator” (i.e. the person making the Will) must meet certain conditions for their Will to be legally valid.

Legal Age

The Testator must be at least 18 years of age to create a legally binding Will in Australia.

Mental Capacity

The Testator must be “of sound mind” to make a legally binding Will in Australia. Being of sound mind generally means you are aware of your actions and of what you are doing when creating a Will. More specifically, it means you are aware you are creating a Last Will and Testament, you are aware of what constitutes your possessions (what you legally own and can bequeath), and you are consciously and deliberately deciding who will receive them after you die.

Undue Influence

A Testator experiences undue influence when another person uses their relationship or position to steer their decision-making. For example, an overbearing relative could use emotional manipulation to unduly influence the Testator to leave a large portion of their inheritance to them. Just like any other contract, a Will may be found invalid if there is evidence of undue influence.

Mental Capacity and Undue Influence are the most common grounds for challenging or contesting a Will. Fortunately, the burden of proof lies on the challenger to demonstrate the presence of either condition for their challenge to be considered and the standard of evidence is high. Drafting your Will with the help of an Australian lawyer is the most sure-fire way to protect your Will from challenges.

The Will: Intent, Execution and Witnesses

Your Australian Will should have clear and concise language to satisfy the Court, and it must be properly signed and witnessed.

Intent

It will always be difficult to fully understand someone’s intentions once they’ve died. The best way to avoid any confusion is to use concise language avoiding colloquialisms or casual speech and to specify every detail in clear English. For example, every Will in Australia should begin with the words “This is my last Will and Testament” to make it clear that all previous versions or instructions can be disregarded. You should also cover succession (i.e. if a beneficiary dies before you, who is next in line) and include residual beneficiaries to ensure your whole Estate is accounted for.

Execution

In Australia, a Will is considered “properly executed” when it has been signed by the Testator in the presence of two impartial adult witnesses. When you sign your Will, you state that you are aware of what you are doing and of the content and intent of the Will and are free of pressure, threat, or coercion (undue influence).

Witnesses

Once you’ve signed your Will, two impartial adult witnesses need to sign it as well. By signing the document, they are testifying that the Testator was of sound mind and were not under undue influence when making the Will. Without witness signatures, your Will is not valid in Australia.
While not a legal requirement, it is greatly beneficial if your witnesses do not stand to benefit from your Estate.

The Estate - Executor and Residual Beneficiaries

The Executor

You are legally required to nominate at least one executor an individual or individuals who will be responsible for distributing your Estate after you pass away. Your Executor must be a legal adult (18+ years of age) at the time of your passing and can’t have gone through bankruptcy at any stage in the past. Your Executor must also be willing and able to discharge their duties, so it’s important to ask the person first. You can nominate your Estate Planning attorney to be your Executor, but they will bill the Estate for their time doing so.

Residual Beneficiaries

Your Estate must be fully distributed after you pass away, so it’s a legal requirement to nominate at least one Residual Beneficiary in your Will. The Residual Beneficiary receives everything left over in your Estate (the “balance” of your Estate) once all other specific gifts have been distributed. If you want to nominate more than one Residual Beneficiary, it’s important to properly deal with proportions and succession.

Updating the Will - Marital status and other changes

A change in marital status can have significant impact on your Will in Australia. Generally, if you get married or divorced after the initial drafting of your Will it is automatically revoked. It is possible to draft your Will to accommodate or anticipate changes in marital status and your Will to remain valid.

While you hope your marriage lasts forever, other things in life can change easily and unexpectedly. You might have a child, or buy a new house, or even change your nominated Executors. Rather than draft an entirely new Will, you can make minor changes by way of a “codicil”.

A codicil is an addition to a Will in a separate document. It can reinforce, add to, or alter an existing Will. There is no set format for a codicil, but it must make reference to the original Will and the date it was executed. If the name of the Testator or the date is incorrect, it can result in lengthy legal challenges and render the codicil invalid. That’s why, in most circumstances, it is better to re-draft your Will if anything more than minor changes are required.

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