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What is a will?

A will is a testamentary document

What is a will some ask, and why bother with one? 

A will is a legal document (often referred to by lawyers as an ‘instrument’) which documents what a person intends to have happen to their property and other matters, when they die. 

A will is the legal way to record your instructions and wishes on how you want property owned in your name distributed when you die.

Importantly a will is the legal way for you to say who you want to be responsible for carrying out your wishes.  That is your legal representative or mostly known as your executor and trustee. 

Because it is a legal document and if validly made according to law, it is enforceable, subject to the rules and principles of law. 

You don’t have to consult a lawyer to make a will but it is worth considering in the long run.  A solicitor’s costs to make a will are small when compared to court applications to fix mistakes or defend will contests.  Everyone’s situation is different of course.   

Because it is to take effect only on death, a will is referred to as being ‘testamentary’.  A testamentary document or instrument is one which its writer intends, at the time of writing it, to come into effect when they die, and not before.  This means if you change your mind as circumstances changes in the course of life events you can make another will and cancel (revoke) the previous one. 

What can a will do?

A will can be used for more than just expressing your intentions as to how you want your property disposed after death.  Depending upon your circumstances and stage of life a will can be used to make clear your wishes on other matters: read more on why make a will and what it can do here.

Testamentary intention

The law does not make it compulsory to make a will or leave instructions as to what is to happen to your property on death.  But it is worth doing so as explained here and to do so with the assistance of a lawyer.

Most people have some preferences about what they would like done with their property and things when they die.  Declaring these preferences formally in writing with the intention that they take effect on death is important to ensure their wishes are carried out.

If you don’t leave a will then the statutory rules on intestacy will apply.  And the application of these to your situation may have consequences you may not like.

 

The word “testament” comes from Latin and means “will”. The expression ‘last will and testament‘ was often used in the past at the commencement of a will to verify that what followed was the testator’s last or final will. It signified that the testator intended that document at that time of writing was their final set of instructions on what was to happen upon their death.

 

A will can be cancelled or revoked at any time

A will can always be cancelled (revoked) and a new one made at any time whilst alive.  Or for minor changes it may be amended anytime up until death by an additional document (a codicil)

How long is a will valid for?

Once a valid will has been made it is a legal document and remains valid until its maker dies.  It then comes into operation.  Of course it maybe amended by the will-maker by a supplementary document known as a codicil.  Or revoked (cancelled) altogether and a new will made.  No-one has any rights or entitlements under the document until the will-maker dies. 

What property can it dispose of?

Wills and succession legislation in the states and territories set out in general terms what  may be disposed of by will, click here to find a table of relevant legislation.   Not all property and assets can be disposed of by will, only that which is owned individually.  To find out more on this see Ownership and will-making – what can and can’t be disposed of by will which includes a table comparing typical assets and whether they fall in or outside of a will.

A will should be valid or comply with the law to be effective

To be valid, a will must comply with certain legal requirements if it is to be effective. Find out more here on what the legal requirements are for making a valid will.

When does a will take effect?

When the will-maker dies.

Personal representatives (executors and trustees) are chosen by the will-maker and appointed by the will to administer the estate according to its terms, being the will-maker’s testamentary intentions.

You can read more about the nature of a will in The Law Handbook, a practical guide to the law in Victoria produced by the Fitzroy Legal Service.

B Stead
BHS Legal
Updated 10 October 2021

 

Important notice: This article is intended for general interest and information only. It is not legal advice and nor should it be used as such. Always consult a legal practitioner for specialist advice specific to your needs and circumstances and rely on that.

© BHS Legal

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