What is a will?

A will is a testamentary document

A will is a legal document, often referred to by lawyers as an ‘instrument’, setting out what a person intends to have happen to their property, (real and personal), and other matters, when they die.  It is the legal way to record a person’s instructions and wishes on how they want their property distributed on the event of their death, and who is to responsible for carrying out those wishes.  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. 

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 one.   The testator intended that document at that time of writing, to be their final set of instructions on what was to happen when they died.

Testamentary intention

The law does not make it compulsory to make a will, or leave instructions as to what is to happen on death, but it is worth doing so, as explained here.

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.

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 it may be  amended anytime up until death by means of an additional document (codicil).  Any testamentary documents not cancelled (or revoked) are collectively regarded as forming the “will”.  It is a legal document which does not take effect until death.  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
April 2014, updated 7 August 2019.

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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