HOW TO MAKE A WILL IN AUSTRALIA
This is a step-by-step, mumbo-jumbo-free guide to writing a legal Will—without anxiety
By Mr Shanti Rubens, B Com LLB
Australian Barrister & Solicitor
Stick with me and I'll break down exactly what you need to do to write a legally binding Australian Will that will leave your family saying....
"Thanks grandma/grandpa, good job!".
And, not "I wish grandma/grandpa had an inch of foresight, so we could have avoided this bitter family tussle, unnecessary legal costs and delays".
Fortunately, with a little insight from a seasoned lawyer (that's me!), you can create a last Will, put it in the bottom draw for safe-keeping and sleep soundly — knowing you've done the right thing by your family.
I'll even show you the exact clauses I use in Wills I've written for Australian clients just like you, so you can use these same clauses in your Will.
These are all written in simple language, so you can be crystal clear about your intentions. There's no need to use fancy legal words like heretofore, beneficiaries or deceased to make a Will that is valid, legally effective and binding.
A legal Will (also called a last will and testament) is simply a document you write and sign to tell the world what you want to do with your possessions when you die.
This is a quick summary of the 5 key things you need to do to write your Will (click the links for more detail).
1. Put executors in charge — to manage and distibute your estate.
2. Gift everything you own — pass on your things to family, with a contingency plan in case they die first, and perhaps a gift to charity or other inheritors.
3. Choose a guardian — to take care of young kids (if you have any).
4. Leave funeral instructions — prefer a burial or cremation? Want a special parting song played at your funeral? Note this in your Will.
5. Sign your Will correctly — in front of two adult witnesses, to make it binding.
Read on... Or, if you are impatient, click the links above and I'll explain each item in detail.
How to identify yourself correctly in your Will
Make sure you identify yourself correctly as the Will maker—with your full legal name, address and date of birth.
My name is ABIGAIL BREEZY MCTINGLE. I was born on 12 March 1961 and my address is 5 THIS PLACE, BRISBANE QLD 4000, Australia.
Putting your address on the Will helps to identify you. Of course, it doesn’t matter if you change your address. Your Will is still legally binding when you move home. The address simply helps distinguish you from other people who might share your name.
It's very important that when you write a Will, you include your full legal name. It might sound obvious but if you write a will but don’t put your name on it, how will anyone know (or be able to prove) that it’s your Will?
If you are known by your maiden name as well your married name, you should include both names in your Will. You can use "nee" or "née" before stating your original name.
My name is JANE MARY SIMPSON DOE (NEE JANE MARY SIMPSON SMITH).
If you have more than one name becuase you sometimes use a foreign spelling, you should include all your names in your Will. You can write "a.k.a" as a short way of saying "also known as".
My name is RAVINDRANATH TAGORE (A.K.A RABINDRANATH TAGORE).
Executor of a Will
When you make a Will, you'll need to appoint at least one executor. "Executor" is a big word and sounds scary but let me explain what it means...
What does an executor do?
An executor is responsible for managing your estate and distributing your assets in accordance with your Will. In other words, the executor must carry out your wishes and their role is to administer your estate when you leave this world.
They are required by law to pay your debts, funeral expenses and the costs of administering your estate and then to distribute the balance of your estate in accordance with the wishes stated in your Will.
The executor will have the power to manage your assets during the time between when you die and the time when your estate is wound up and your assets are distributed to the inheritors. This time period is usually at least 6 months and sometimes up to 2 years or longer.
One of the main duties of an executor will be to arrange the sale of your home, shares and other valuable assets. It is the executor who will choose the real estate agent and set the sale price. So, executors have real power and you'll need to appoint the right person (or people) for the job.
Who should you appoint as an executor?
You should appoint someone smart and honest!
For example, you may appoint a family member, friend or professional (such as a lawyer or accountant) as an executor. Note, if you appoint a professional they may claim payment for their services.
Choosing a fair and honest person to act as your executor will minimise the likelihood of disputes and ensure your wishes are carried out correctly, in accordance with your Will and the law.
How many executors should you appoint?
You can appoint one person as your executor (such as your husband or wife) or two or more people to act in that role (such as your children).
If you only appoint one executor, then it’s a good idea to appoint at least one substitute executor in case your sole executor dies before you or is unable to act for any reason.
For example, they may decide they don’t want to act as your executor and disclaim their position.
Let’s look at a real-life example. Let’s say you appoint your husband, Ben, as your executor but he dies before you then you’ll need someone else to take on the role.
Perhaps, you could appoint your two kids, Sally and Sean, act as your substitute executors if Ben dies before you. Here's some sample wording you can include in a Will for appointing an executor plus a substitute.
I appoint BEN SMITH of THIS STREET, THAT SUBURB NSW as the sole executor of my estate. However, if BEN SMITH is unable or refuses to act, then I appoint SALLY WALLY of FROGPOOL GROVE, COOMBABAH QLD 4216 and SEAN SMITH of THIS STREET, THAT SUBURB NSW 2482, AUSTRALIA as the substitute executors of my estate.
If you and your partner are elderly and taking care of business will be over-whelming if one of you dies, then you may prefer to appoint your children to act as your executors.
Some parents prefer to appoint their most commercially savvy, fair and honest child as executor, while others prefer to appoint all of the children as executors to ensure that no one is left out of decision making and all are treated equally.
I would generally recommend the latter, unless one of your children is very quarrelsome or not astute with legal matters—in which case you might want to exclude them from acting as an executor.
If you only appoint one of your children as an executor, the risk is they may carry out your wishes in a way that suits them but not the other children. For example, they may decide to sell your home off quickly to get money fast while the other children may prefer to take their time and get the best price for your prized asset (or vice versa).
When you get a professional trustee company to prepare your Will, they will often encourage you to appoint them as your executor. In some cases, the professional trustee will even prepare your Will for free or at a reduced fee if you make them your executor. This is because they make their money by charging your family hefty executor’s fees after you pass away.
Many families complain that, aside from charging too much, professional executors take too long to wind up an estate and don’t make sensible decisions that are in the best interests of the family. Instead, they tend to be very risk averse and unresponsive.
Therefore, I generally discourage clients from appointing a professional trustee unless there’s a good reason for doing so.
However, it might make sense where there’s no one in your family who is competent to act as an executor—where perhaps you have an only child with a disability that precludes them from managing their own affairs and no other friends or family members are willing to take on the executor role when you pass away.
For more information about professional executors and what they charge, see here:
-State Trustees in Victoria
How to write a Will for your loved ones
How can you make a Will where everything goes to your loved ones and nothing ends up in the wrong hands?
It’s critical that your Will clearly states who you want to inherit your estate and what happens if any of those people pass away before you.
Let me explain the formal legal terminology you will find used in a "Will". A will is often called a "last will & testament".
The word “estate”, refers to all the assets (things) you own when you pass away. Commonly, this would include real estate property, furniture, bank accounts, shares and other financial investments, personal effects and any other valuable items.
Your "inheritors" are the people you choose to give your assets to in your Will (usually your family members or other loved ones). These people are often referred to as your "beneficiaries" or "heirs". And, the things you give them are called "bequests", "legacies" or simply "gifts".
When you write your Will, I recommend that you first include any specific itemised gifts and then you also make a “catch-all” gift of everything else that’s left over—in legal terms, the amount left over is called the "residue".
What are specific gifts in a Will?
A specific gift (or an itemised gift) simply means a gift of a specific item (for example your pet) to a particular person (such as your friendly neighbour).
While some people make a detailed list of everything they own and then divide it all up amongst their loved ones, I generally don’t recommend this approach because:
1. unless you are gifting a sum of money, the gift may fail if you no longer own the particular item when you pass away.
2. in other words, many of the things you own when you make your Will (like your car) you may not own when you finally pass away (and you’re too old to drive)!
3. when it comes to small personal effects that may have sentimental but not financial value (like your brooches and cutlery), you can leave it to your family to work out how best they would like to allocate these things amongst themselves.
4. in any case, it’s not necessary for your Will to include a list of all the things you own in order for your inheritors to receive everything.
Rather than making itemised gifts, it's much easier to simply give your “estate” (that is, everything you own, lock-stock-and-barrel) all to one person or in shares to various people.
There are however some circumstances in which it makes sense to give a particular item of your estate to a specific person. For example, you might want to give a favourite ring specifically to one of your children.
I explain more about how and when to make a will with itemised gifts in this video:
Here’s a sample clause you can put in your Will to gift a specific item of money or property:
I give these gifts to each specific recipient (if they outlive me) as follows:
1. $25,000 to my son BARRY BOGGS; and
2. my diamond wedding ring to my daughter RACHEL RHYMES; and
3. my train-set to my grandson TOMHAS TERRY.
Once you’ve made any itemised gifts, you’ll need to decide what to do with the rest of your estate. This is what lawyers often refer to as your "residuary estate". Put simply, it means what’s left over after your executors have paid out your expenses and passed on any itemised gifts. The expenses will generally include debts like council rates, administrative costs such as lawyers fees and probate fees and any court costs, if for example, their is a dispute about the Will.
I like to speak in plain terms and simply refer to your "residuary estate" as your "main estate".
Let's assume you want to give your entire main estate to one person. For example, to a sole inheritor such as your husband, wife, partner, only child or other individual. Here’s a sample clause you could put in your Will:
I give the rest of my estate (my main estate) to my husband, DAVID SMITH.
In other cases, you might want to give things to more than one person. You can do this simply by giving each person a share of your entire assets, rather than making itemised gifts--where you give specific assets to particular people.
This is a sample clause (from Legal Zebra’s Will document) for giving your estate to more than one person:
I give the rest of my estate (my main estate) to the following inheritors in equal shares:
1. my son, IAN CHONG; and
2. my daughter, JANE CHONG.
How to make a contingency plan, in case an inheritor dies before you
Your Will should not only state who you want to give things to but what happens if those people die before you. For example, if you give everything to your husband or wife, and they die before you, then what happens ….?
To answer this question definitively, you can name:
1. substitute inheritors (usually your children, or if they die their children) and
2. then backup inheritors (usually your brothers and sisters or friends) and
3. finally, if there’s no one left and you don't want your prized possessions going to the government, you can nominate a charity.
Example gift to substitute inheritors
Let’s say you want to give everything to your partner, but if they die before you, then you want everything to go to your kids and a good friend as your substitute inheritors, you could write this as follows:
I give the rest of my estate (my main estate) to my husband, JORDAN JONES. However, if JORDAN JONES dies before me then I give my main estate to the following substitute inheritors in percentage shares:
1. 45% to my son, SUSAN JONES;
2. 45% to my son, NATHAN JONES; and
3. 10% to my dear friend, PETER PAN.
Now, let’s take this once step further...
What happens if one of your kids aren’t alive when you pass away but you have grandchildren?
Perhaps you’ll want your grandchildren to get their parent’s share of the estate. You should specify this in your Will.
Example gift to backup inheritors
Then finally, if all your children die before you and they don’t have any kids or the kids aren’t alive, you should say who you want your estate to go to. You could include a clause like this in your last will and testament:
…. if no inheritor of my main estate (and no child of such inheritor) outlives me then I give my main estate to my sister, LILY CHONG as my backup inheritor.
How to make a Will with a gift to charity
When you write a will, in addition to taking care of family, you might want to leave a gift to a cause you feel is important, and specifically a charity organisation that’s doing good work to support it.
You can include a charitable gift in your Will. To do this, you should make sure you identify the charity correctly. Don’t simply say:
“I give $10,000 to an animal home to take care for cats and dogs”
when you can be much clearer and say:
“I give $10,000 to RSPCA Australia ABN 99 668 654 249 for its general purposes”.
Most established charities publish the appropriate wording on their website so you can be sure to get it right. Here’s a list of some popular Australian charities who encourage you to leave them a bequest and provide the correct wording:
- How to include a gift in your Legal Will for WorldVision.
Perhaps you only want to leave a gift to charity if all your family members pass away before you. That is, so the money goes to the charity, rather than the government, if there’s no one left to inherit from you.
To do this, you could write in your Will for example:
Finally, if no inheritor of my main estate outlives me and no backup inheritor outlives me, I give my main estate to Cancer Council Queensland ABN 48 321 126 727 for its general charitable purposes.
How to make a Will with a guardian for your children
It will be a tragedy if you die leaving little kids with no one to take care of them. Or, confusion about who you want to look after them.
Fortunately, you can appoint a guardian in your Will to take care of any children you might leave behind. That is, if both you and their other parent pass away.
I'll explain how to write a will expressing your choice of guardian...
Obviously, you should choose someone you trust to look after your little ones if, horror of horrors, you’re no longer around and they are orphaned. This could be your sibling or a close family friend.
It’s prudent, also, to appoint a substitute guardian in your Will—just in case, your first choice of guardian refuses or is unable to act.
Here is a sample clause to appoint both a primary and substitute guardian in your Will:
If I die leaving children under the age of 18 who do not have a guardian (such as their other parent), I appoint MARY POPPINS of 10 SAMPLE STREET BRISBANE QLD 4000 as their guardian.
However, if MARY POPPINS is unable or unwilling to act (or continue to act) as a guardian then I appoint IAN POPPINS of 15 LITTLE STREET BRISBANE QLD 4000 as their substitute guardian.
How to make a Will that defers your kid’s inheritance till they're old enough
It’s very important to make a Will when you have young kids.
But, the trouble is they may be too young to receive their inheritance if, god forbid, you die before they grow up. So, you will need to make special provision in your Will to deal with this.
You can state in your Will the age at which you want young children to receive their inheritance.
This could be “18”. Or, perhaps a little older, like “25”, if you think that your kids won’t be mature enough to deal with a large inheritance while they’re still young.
By making a Will with Legal Zebra's Online Legal Will Kit you can easily choose an age between “15” and “25” as the final inheritance age for your children.
When you state a preferred inheritance age, your Will document should still give your executor some flexibility. That is, so they can distribute at least part of your kids inheritance to their parent or legal guardian, or advance money for their educational needs, before they reach the preferred inheritance age.
The Legal Zebra Will document includes appropriate wording to deal with this issue.
How to write funeral instructions in a Will
So your family doesn't have to make difficult decisions in their time of grieving, make sure that when you write a Will, you include details about:
1. what to do with your body
2. instructions for your funeral and
3. perhaps, a final parting song.
Disposal of your body
You should say what you’d like to happen to your body when you pass away. For example, would you prefer to be buried or cremated or perhaps you have another wish.
This is an example of a simple clause you can use when you write a Will.
After my death, I would like [to be cremated OR to be buried OR my body to be used for scientific or medical research purposes].
You can also express special wishes for your funeral in your Will. For example, you might want to give guidance to your family and loved ones to honour you as follows:
My wish for my funeral is that my family hold a dignified celebration of my life in the Melbourne Botanical Gardens and then travel to India to scatter my ashes in the Ganges of India.
A send-off song
Would you like a special song played at your funeral?
The Legal Zebra Will Kit offers an “end-of-life jukebox” that lets you include a final parting-song in your Will... like this:
At my funeral, I would like you to play the song Stairway to Heaven.
You can see here how easy it is to choose a song and how it appears in your Legal Will...
Need help choosing the right song for your funeral. Check out some suggestions and see what others have chosen in our Essential Guide to Rocking Out At Your Own Funeral.
Click here to download a sample of Queen Elizabeth's Legal Will. As shown above, she aptly chose Who Wants To Live Forever performed by Queen.
How to specify the law that governs your Will?
There are different laws about Wills and Probate in each State and Territory of Australia.
So, you should state in your Will which law governs your Will. Obviously, you should choose the laws of the State or Territory in which you live.
If, for example, you live in New South Wales, a simple clause like this covers the point:
This Will is governed by the laws of New South Wales, Australia.
How to change your Last Will
There are two ways to correctly change your Will and a third way that is incorrect and will cause problems for your family.
1. Whenever you make a Will it will automatically replace an earlier Will. So, you can change your Will simply by making a new one. This is a valid way to change your Will, particularly if you want to make substantial amendments.
2. You can make a codicil to your Will. This is a document that is read together with your Will, to make additions or changes, but does not replace the initial Will. This is a valid and appropriate way to change your Will when you only intend to make small changes.
3. You should never cross out or handwrite changes to your Will. These sort of changes may cause problems as it's not clear whether the changes are legally effective.
How to make a new Will to replace an old Will
When you want to change your Will, it’s often easier to make a new/fresh Will rather specify changes to your old Will.
You can do this by including a statement in your new Will to say that it’s your last will, just to be clear that it overrides any earlier wills you might have made.
For example, you can write in a Will:
This is my last Will and revokes all of my former Wills and testamentary acts.
By including a “last-will clause” (like the one above), it’s clear that the new Will is intended to replace the old Will.
I also recommend that you ensure whoever has your old Will (like the long-forgotten lawyer you used in 1980) knows that you have made a new Will in 2020, so they don’t, unknowingly, try to prove your old Will when you pass away.
How to change your Will with a codicil
In cases where there is conjecture or uncertainty about whether you have the legal capacity (soundness of mind) to make a new Will, it is safer to amend your existing Will rather than making a fresh Will. You can do this by making what’s called a “Codicil” to your Will.
If, after you’ve passed away, a Court decides that you didn’t have proper legal capacity to make the Codicil it may still uphold the rest of the Will, so at least you won’t have died without a Will.
Can you handwrite changes to a Will?
People often ask me if they can simply cross out something in their Will and hand write changes, like you might do with a letter. The answer is definitively "NO!".
A Legal Will is a very important document and it is imperative that the integrity of the document is not questioned. If you were to make changes people make question whether they were in fact made by you or made by someone else. This could lead to a dispute.
Therefore, you should ensure that you write the Will clearly (preferably in typed form) and not make any handwritten changes before it is signed and witnessed.
How to print your Australian legal Will
In Australia, you can print a legally binding Will on any sort of paper. It doesn’t have to be on thick parchment, rolled up in a scroll, taped or tied up with a ribbon.
When you get a lawyer to prepare your Will, they may print it on sheets of paper that are stapled together along the spine and taped up, but that’s not necessary. They do that, in some cases, just to make the document look different from other documents.
When you are printing a legal document for use in Australia, the easiest way to print is on A4 paper. Make sure you use a high-quality printer, so the document is clearly legible.
Personally, I think it’s a good idea to put your printed document in a plastic cover like this. I don’t staple the pages together because if they are loose it’s easier to put them through a scanner. Besides, you don’t need a staple because all the pages should be signed anyhow.
We will get to that next… in the signing instructions below.
Of course, you could write your document out by hand, but using a computer is much easier.
Oh, and there's another option that is even easier than typing out your own Will.
Of course, I want to tell you about it.
Because I built it and it will automatically generate all the right clauses for you--error free.
All you need to do is answer a few simple questions and then this magic tool does all the work. That's right, the drafting is done for you.
This magic tool is the Legal Zebra Online DIY Will Kit.
How to sign a Will so its valid and legally binding in Australia
To make a valid legal Will in Australia, you simply need to sign the Will document (preferably, with a blue pen) in front of two independent adult witnesses. After you have signed, each witness should sign in front of you and in front of the other witness using the same pen.
Who can legally witness you signing a Will?
Any two independent adults can validly witness you sign a Will in Australia.
The witnesses don't require any special qualifications. They must be over 18. They must not be entitled (or expected) to inherit anything under the Will.
A witness to a Will is considered independent or "disinterested" if they are not entitled (and would not expect) to inherit anything under the Will.
Your neighbour, friend, local shop keeper, librarian, nurse or any other adult who is willing to act as a witness is an appropriate person to sign your Will, together with you, as one of the witnesses. Remember, you must have at lest two witnesses.
Can family members witness a Will?
You should not have one of your children (or their spouses) witness you signing your Will, because they might be inheritors or expect to receive something from you under your Will. As such, they will not be regarded as independent or disinterested.
Similarly, you husband, wife or partner are likely to be inheritors under your Will or might claim against the estate if they don't receive an inheritance. They are not independent or disinterested and they should not act as a witness. If they do, it could be difficult to prove the Will.
An adult witness refers to a person who is at least 18 years old.
Do witnesses have to read a Will?
A witness doesn’t need to read the Will, they simply need to see you and the other witness sign the Will document.
What colour ink do you sign legal documents with?
Generally, a blue pen is preferred over a black pen as it makes it easier to distinguish the original version of the document from a copy, when you sign a Will with a blue pen.
The Will document should have a signing panel/space on the last page for you to sign and date your Will. This will also include a space for each witness to sign the document and write in their name, address and occupation.
In addition to the last page, you and each witness should sign or initial all of the other pages. That is, so no one can tamper with your Will by swapping in another page.
Moreover, a well drafted Will document should clearly state where each person needs to sign, so as to avoid any mistakes when it comes to finalising you Will.
I recommend that you check, double check, and then triple check that each page of the document is signed or initialled correctly. Attention to detail is important in these matters!
Do executors have to sign a Will?
The executors are not required to sign your Will.
So you can appoint someone as an executor without them knowing. However, it is a good idea to discuss with them in advance whether they are willing to act as an executor of your Will, otherwise they may disclaim (resign from) the role.
Does a JP need to sign a Will?
You don't need a justice of the peace (JP) to sign a Will in Australia.
Does a lawyer need to sign a Will?
It is not necessary to have a lawyer sign a Will in Australia. Any two independent adult witnesses can sign a Will with you to confirm they have witnessed you signing it. None of the witnesses must be a lawyer or JP.
How to store your Will after it’s signed?
Make sure your original signed and dated Will document is stored safely and securely and readily accessible when you pass away.
You could store the original of the Will document in a safe place such as at your home or the office of your lawyer or accountant. It is not sufficient to simply retain a photocopy or a scan as the original signed document will be required to prove your Will when you pass away.
To make a valid legal Will in Australia, you do not need to lodge your Will document with the government, a lawyer or any other body. You simply need to ensure that it is properly signed and can be located and presented to a court to prove your Will when you pass away.
Unless you want to keep your Will private, it’s usually a good idea to give a copy of your Will to your executors and tell them where to locate the original.
Contrary to what many people expect, you don't need to sign you Will in front of a lawyer or notary public in order for it to be binding. That is the practice in some other countries, but not in Australia.
Also, in Australia, you don’t need to file your Will with a Court or any government department, in order to create a valid, legally binding, Last Will.
After you die however, your executor will be required to file your Will document with a court to prove the Will is valid. This process is known as “obtaining a grant of probate” and it there is a court in each state or territory of Australia responsible for these matters.
How to write a Will without a lawyer
Now you know how to make a valid Last Will & Testament, it's time to write up your legal Will.
Because a Will is such an important document, it's critical that all the wording is correct and complete and there's no potential for confusion about your wishes.
For most people with straight-forward wishes, a do-it-yourself legal will can be an appropriate alternative to spending money on a lawyer.
When is it safe to make a Will without a lawyer?
The two things to consider in deciding whether you need a lawyer to help with your will is the complexity of your wishes and the value of your estate.
Most commonly, couples making a Will want to give everything to their partner or, if their partner dies first, then to their children. If these are your wishes too, then a DIY Will is most likely suitable and you can avoid the time and expense of having a lawyer prepare your Will.
However, if you have a small fortune to gift to your loved ones or complex arrangements such as assets held in a family trust, you should consider seeking out the help of a lawyer.
One the other hand, if you are like most Australians and your assets are limited to your home and some shares and money in a bank account, you can most likely write a Will without a lawyer. That is, as long as you use a reliable and secure system that gives you the proper guidance.
I can show you how to make an error-free binding legal Will, with easy to follow videos that guide you every step of the way.
Fill-in a simple form (which takes less than 20 minutes) and then I'll do the rest of the work for you.
As soon as you complete the form, I'll email you a PDF with a FREE draft Legal Will containing all the clauses I covered above plus more. Once you're happy with your Will, you can order a final version for less than the cost of a family pizza.
Within 5 minutes after you've ordered your personalised document though Legal Zebra's secure online checkout, I'll email you the final version ready for signing (including clear instructions on how to sign and witness the document).