Wills

Contributed by Emma Bragg, Tetlow Legal and current to March 2022. Based on the contribution of Charles Rowland.

What is a Will?

The law concerning wills in the ACT is contained in the Wills Act 1968 (ACT).

A will is a document in which a person (called the ‘testator’) directs how their property is to be divided on their death and to whom it is to go (called their ‘beneficiaries’).

In the will, the testator would also usually direct who is the person responsible for administering their estate following their death (called the ‘executor’).

Generally, wills have to be in writing and properly signed and witnessed in the precise way laid down in the statute in order to be valid (for further information on the formal requirements for a valid will, please see Requirements for a Valid Will).

Why make a Will?

Every person over the age of 18 should have a will to ensure that their wishes following their death are known and that their estate can be administered as efficiently, and as cost-effectively, as possible.

There are a number of reasons for having a well-drafted up-to-date will, including:

• to have certainty as to how your property is to be divided on your death and to whom it should go to;
• to appoint the executors of your choice. If no executor is appointed then the court has to decide who will administer the estate. This is an inconvenient process and is more expensive than simply appointing an executor in your will;
• to appoint a guardian of your minor children (that is, those of your children who are under 18 years old at your death);
• to carefully plan for taxation problems;
• to avoid having your estate divided according to the laws of intestacy. If you don't have a will then your estate is distributed according to the laws of intestacy: the law will decide according to a set pattern who will receive your property (for the rules of intestacy refer to Intestacy: Dying Without a Will). The intestacy rules, which differ for each State or Territory, may not accord with your wishes;
• to avoid the hardship caused to the family in having to administer an intestate estate; and
• to avoid the additional cost and inconvenience of obtaining Letters of Administration as opposed to a Grant of Probate.

You may have to pay to have a solicitor draft a will for you, but the money you spend, should be regarded as money well spent.

Who can make a Will?

Generally speaking, and subject to the below exceptions, any person over the age of 18 years is capable of, and should, make a will.

Capacity

The law requires that a person who wishes to make a will must have the mental capacity to do so. The tests for capacity were laid down in a famous case called Banks v Goodfellow (1870). The tests for capacity established in that case are:

• the testator must understand the nature of the act of making a will;
• the testator must understand the extent of the property they are disposing of;
• the testator must understand and appreciate the claims that those close to the testator have on them; and
• there must be no disorder of the mind which distorts their testamentary gifts.

A person who has suffered a stroke and is unable to speak may still satisfy these tests and be capable of making a will. Such a person should be encouraged to consult a solicitor and to make a will if this is what they want to do. But such a person should NOT be pressured to make a will, or put under any pressure at all to include any particular provisions in a will they are making. Like everyone else, they must be completely free to make, or not to make, their own will.

Wills for Minors

Under certain circumstances, such as if they are married or making a will in contemplation of marriage, a minor (that is, a person under the age of 18) may be able to make a will. Section 8A Wills Act 1968 gives the Supreme Court the power to enable this to be done.

Court-Authorised Wills (Statutory Wills)

Part 3A Wills Act 1968 provides that the court may, on application of any person, authorise that a will be made on behalf of a person who is a minor (a person under the age of 18) or who lacks the requisite capacity to make a will.

In the case of a minor, this might be relevant for a young person who receives a substantial compensation payout and where the provisions that would apply on intestacy are unsatisfactory. The court must be satisfied that the minor understands the nature and effect of the proposed will and that it is reasonable in all the circumstances.

In the case of a person who does not have the mental capacity to make a will, the court must be satisfied that the proposed will is, or may be, one that would be made by the person if they had capacity to do so.

In both cases, adequate steps must have been taken to allow all people with a legitimate interest in the application to be represented.

If the court approves, then upon execution of the proposed will, it has the same legal status as any other valid will.

An application for a statutory will must be made during the person’s lifetime and an order made while the person is still alive. If the person dies before an order is made then there may be other remedies available. See generally Contesting A Will.

A practical guide on statutory will applications has been written by Richard Williams and Sam McCullough (details of this guide can be found at Contacts and Resources).

Requirements for a Valid Will

Formal Requirements

Before signing a will the testator must fully understand all the provisions of the will and be satisfied that it accurately reflects their testamentary intentions.

In the ACT the formalities are set out in ss9, 10 Wills Act 1968.

The Supreme Court in the ACT has a power to admit to probate a will which does not comply with the formalities if the court is satisfied that the document was intended to be the last will of the testator (see s11A Wills Act 1968).

The Signing Ceremony

A. Witnesses

The requirements in relation to witnesses are as follows:

• you must have two witnesses;
• the witnesses should both be over the age of 18 years;
• a witness should not be the husband or wife of a beneficiary or engaged to marry a beneficiary; and
• witnesses in the ACT must sign in the presence of each other as well as in the presence of the testator.

Note that beneficiaries who sign wills are no longer excluded from inheriting under the will (see s15 Wills Act 1968). This alters the old rule. However, the court may regard these facts as suspicious circumstances, and may require you to satisfy the court that the transaction was righteous.

B. Signing the Will

Prior to signing the will, you should be aware of the following matters:

• you as testator should read your will very carefully to be sure that every page is there and that the will is correct in every detail;
• you and your witnesses should all use the same pen;
• the pen may be either biro or ink. It may be a blue pen. Do not use any type of pen which can be erased;
• you and your witnesses must all be present during the entire process of signing and all persons present must watch each person sign;
• you do not have to tell your witnesses the contents of the will; and
• be absolutely sure that you sign your own will and that each page is a page of your own will and not that of another person.

The procedure for signing the will is generally as follows:

• using your normal signature sign each page of the will. The testator must be the first to sign;
• the first witness must then sign each page of the will. At the end of the will near the testator's signature, the first witness must sign, and add the witness's full name, occupation and address;
• the second witness must then sign each page of the will. At the end of the will, the second witness must sign alongside the signature of the first witness, and add their full name, occupation and address;
• if any alterations have been made to the will those alterations must be signed by the testator and both of the witnesses in the margin near the alterations in the same manner as the will itself is signed and witnessed; and
• make sure that you date the will.

Section 11A Wills Act 1968 enables the Supreme Court to hold that a document is a valid will even where it is not executed with the required formalities, if the court is satisfied that the testator intended the document to be his or her will. The process is expensive and time-consuming, and no-one would willingly make an informal will relying on the executors and beneficiaries to apply to the Supreme Court afterwards to uphold it.

Because informal documents may be admitted to proof as wills in the ACT and some of the States, it is important not to create doubtful documents which look as if they might be intended to be wills.

Foreign Wills and Wills made outside of the ACT

Wills made in other States or Territories or overseas will be accepted in the ACT if they are valid according to the law of the jurisdiction where they were made (refer to Part 2A Wills Act 1968).

If the will is written in a foreign language then it will be necessary to obtain a certified translation of that document on the death of the testator.

International Wills

New legislation in all States and Territories in Australia came into effect in April 2015 to ratify the Convention providing a Uniform Law on the Form of an International Will 1973 (the ‘UNIDROIT Convention’).

The UNIDROIT Convention seeks to harmonise and simplify the formalities required for wills that have international characteristics. It sets out a uniform law prescribing the form of an ‘International Will’ that is recognised in all countries that are a signatory to the Convention. To find a current list of the countries which are presently signatories to this Convention, please click here.

We note that the formalities required for an International Will are not the same as the formalities which are required for a valid will in the ACT. Namely, an additional third ‘authorised’ witness (which can be a solicitor) is required for an International Will as well as a certificate signed by a solicitor stating that the will has been signed in accordance with the requirements of the UNIDROIT Convention.

If you are interested in making an International Will you should seek suitably qualified legal advice from a solicitor who regularly practices in this area of the law.

If you own assets outside of Australia, or where that country is not a signatory to the UNIDROIT Convention, then you may wish to also consider making a will in each jurisdiction that you own assets. For example, making a will which expressly states it is dealing with your assets in Australia, and another will in the other country where you also have assets; which is prepared and executed in accordance with the laws of that country. There can be many advantages to adopting such an approach to your estate plan. However, great care should be taken if you take this approach so as to not inadvertently revoke the wills in each country and it is strongly suggested that you seek legal advice from a solicitor who regularly practices in this area of the law if you wish to proceed down this path.

Considerations when making your Will

Choice of Executors and Trustees

A. Executors generally

The choice of executors and trustees is interwoven with the tasks they perform. The persons appointed as executors are almost always also appointed as trustees as well.

It is important to note that no-one who is appointed executor is under any legal obligation to accept the appointment, even if they have told you that they would.

Appointing as executor a person who does not benefit from the will places a considerable burden on that person, and if you are thinking of appointing as executor someone who is not a beneficiary, you should talk to that person, and see if they really are prepared to, and capable of, taking on the responsibility.

No person who is appointed executor need actually do the technical or professional work of administering the estate. It is always open to an executor to get a solicitor, trustee company or the Public Trustee and Guardian to do all or some of the work of administering the estate, and indeed, this is the usual thing to do. Only a minority of lay executors actually do the work of administration themselves. For example, it is common to have the solicitors deal with the transfer of real property, but the executor deal with government bodies who need to be advised of the death of the deceased (such as Medicare) and divide up the personal effects of the deceased such as jewellery and household goods according to the provisions of the will and the wishes of the family.

B. Harmony amongst executors

You should strongly consider whether you appoint persons as your executors if they are likely to disagree seriously, or if the nature of the estate or the demands imposed by the will are likely to cause the executors undue responsibility or stress. In this case you might consider appointing an independent executor such as a trustee company or the Public Trustee and Guardian.

C. Can they also be a beneficiary?

There is no objection to appointing as executor of a will a person who is also a beneficiary under it. Indeed, in most cases, particularly in the case of corresponding wills between partners, this is the usual thing to do.

Being an executor is an onerous and often thankless task, so you should not be keen to appoint a family friend who will take no benefit under the will. In this case a legacy to the family friend to compensate them for time or trouble may be in order.

D. Difficult Estates

Where there is a need for long term provisions such as life estates or trusts, or where there are no suitable close family members to act as executors, it may be useful to appoint as executor or trustee under your will a professional such as the Public Trustee and Guardian, or in certain cases, a trustee company. The question of cost to the estate, as well as the advantages and disadvantages to the estate, should be discussed with the Public Trustee and Guardian or the trustee company as the case may be.

Appointment of Testamentary Guardian for Young Children

A surviving parent will continue to be responsible for making decisions concerning the daily care and control of your minor child following your death. This does not include a step-parent.

Generally, a testator usually wishes to provide for someone to be the guardian of the young children if the other parent does not survive the testator. It is not usually necessary to appoint a guardian for children who have reached teenage years, indeed, the appointment of a guardian may inhibit the family when it tries to find a home for the orphaned children.

The law of testamentary guardianship in the ACT is governed by the Testamentary Guardianship Act 1984 (ACT) ('the Testamentary Guardianship Act').

The powers of a testamentary guardian (appointed under the Testamentary Guardianship Act) are set out in s11 of that Act.

Section 11(1) Testamentary Guardianship Act provides:

A testamentary guardian of a child has responsibility for the long term welfare of the child and has, in relation to that child, all the powers, rights and duties that are vested by law or custom in the guardian of a child, other than--

(a) the right to have the daily care and control of the child; and
(b) the right and responsibility to make decisions concerning the daily care and control of the child.

While it is common for the children to be under the care and control of the person appointed as testamentary guardian, this is not legally necessary, as it is perfectly possible for guardianship and care and control to be separated.

When looking at who to appoint as a testamentary guardian it is not generally a good idea to appoint a couple as joint guardians, as the relationship may break down, and then cooperation between the two is likely to be at an end.

Order of Deaths

In general, where a beneficiary dies before you, the gift lapses and is of no effect. Where it is uncertain who died first there is a statute (s 49P Administration and Probate Act 1929) which deals with this situation and ensures that the gift does not fail completely. It is therefore not necessary to deal with the situation of you and your partner dying simultaneously.

Also by virtue of statute; if a gift is made by will to your child or children and one of those children dies before you leaving a child or children who survive you by a period of not less than 30 days, the gift to the child who died before you does not lapse, but passes to the descendants of the deceased child (refer to s 31 Wills Act) unless the statutory provision is specifically excluded in the will.

Disposal of the Body

If you have strong views about the disposal of your body you should make those views known to your executors and close family members during your lifetime, say, by letter. There is a danger in putting those views in your will because the will may not be found until a week or so after you have died and by then the wrong thing may have been done.

Drafting Difficulties in Wills

Blended Families

A blended family is one in which one (or both) of the partners has a child or children from a previous relationship. Blended families create very difficult wills problems, and an estate plan should be worked out. If you have a spouse or partner, as well as children from a previous relationship, then you really need to have a professionally drafted will.

If you leave the whole estate to your surviving spouse or partner who is not the parent of your children then the surviving spouse or partner will take the estate. The surviving spouse or partner might then re-partner, and, under the influence of new loyalties, make a will leaving their whole estate (including what they inherited from you) to the new partner and the offspring of the new relationship. Your children from the previous relationship may be forgotten and get nothing.

The intestacy rules may not deal satisfactorily with the situation on your death either. If a person who has a spouse or partner, as well as children from a previous relationship, dies intestate (that is, without leaving a will), the surviving spouse or partner will take the bulk of the estate and the same problem arises.

The situation must be dealt with carefully and sensitively by an individually crafted will.

Superannuation must also be taken into account in your estate plan if you have a blended family. Superannuation is often the largest asset, and it usually cannot be dealt with by a will. For further information on superannuation in the context of a deceased estate, please see Superannuation and Estates.

Providing for Vulnerable Persons

Where a testator wants to provide for a person with a disability, or the testator wants to make a gift but wants to protect the subject matter of the gift from the beneficiary (who may be an alcoholic or a bankruptcy risk), the will can contain more complex provisions such as protective or discretionary trusts. A trust or a life estate can also be used to keep property in the family, particularly if the beneficiary is, say, married to a person who will put undue pressure on the beneficiary to hand over the property. In such circumstances as these, it is prudent to get the advice of a professional and have them draft the will.

Superannuation and Life Insurance

In giving instructions to a solicitor to draft your will, you should discuss the effect of superannuation and life insurance on the distribution of the totality of your assets after your death. Superannuation can have a very large and sometimes unexpected impact. Professional advice is needed. For a further discussion on superannuation in the context of estate planning, refer to Superannuation and Estates.

Regularly Reviewing Your Will

Bear in mind that your circumstances are likely to change with the passing of time and therefore you should review your will if there are subsequent changes in your personal circumstances (such as, births or deaths or marriages or divorces in the family), or change in your financial circumstances (such as, if you dispose of any property which you have mentioned in your will).

In any event a will should be reviewed regularly. You should read the copy of your will which you keep at home every two or three years, or when some major change in your circumstances or taxation laws occur.

Who can get a Copy of your Will?

Sometimes a person who is holding the will is unnecessarily restrictive about allowing interested persons access to the will or to documents which may be testamentary.

Section 126 Administration and Probate Act 1929 allows an ‘interested person’ to inspect, or be given a copy of, the will in a person’s possession or control upon written request. A will includes a revoked will, an informal will or a codicil.

Section 126(3) Administration and Probate Act 1929 provides that an ‘interested person’ means any of the following:

• a person named or referred to in the will, including a person who is a beneficiary under the will;
• a person named in an earlier will as a beneficiary under the will;
• a domestic partner or child of the deceased person (see definition of ‘domestic partner’ at Glossary of Legal Words Used);
• a parent or guardian of the deceased person;
• a parent or guardian of a person younger than 18 years old who is a beneficiary under the will;
• a parent or guardian of a person younger than 18 years old who would be entitled to a share of the estate if the deceased person had died intestate;
• a person who would be entitled to a share of the estate if the deceased person had died intestate;
• a person who, immediately before the death of the deceased person, was a guardian or manager for the person under the Guardianship and Management of Property Act 1991; or
• an attorney under an enduring power of attorney made by the deceased person.

The r 3111 Court Procedures Rules also empowers the court to order any person in possession of a testamentary document to produce the document to the court. An interested person who is being refused reasonable access to the will can use this provision to gain such access.

The Benefit of Professional Advice when making a Will

Should you make your own Will?

IT IS NOT A GOOD IDEA TO MAKE YOUR OWN WILL.

The most inexpensive way to make a will is to buy a will form from a stationer or to buy a will kit. The trouble with these will forms and kits is that they are often completed incorrectly, the language used by the testator is ambiguous or unclear, or the testator seeks to deal with assets in the will which they are unable to deal with.

Often in wills which have been drafted without the assistance of a professional, items of property which do not form part of the estate, such as superannuation, life insurance policies, assets not legally owned by the testator or assets held as joint tenants with another person or persons, are mentioned in the will. These gifts may end up being invalidated and the intentions on your death are undone.

It is very expensive to get a will interpreted by the court as interpreting a will falls into the jurisdiction of the Supreme Court. This means that, because of costs, many doubtful wills are never resolved, and resentments remain in the family for generations thereafter. If the parties do get the Supreme Court to resolve the difficulties of interpretation, the expenses will constitute a large and unwelcome deduction, usually from the estate.

It is important to note that even valid wills can be challenged by people who may be disappointed by its contents, so it is important when drafting a will to be mindful of the ways in which a will or an estate can be challenged and to attempt to reduce the likelihood of this happening as much as possible.

More complex wills or situations involving blended families, large estates or people who are self-employed or who have an interest in businesses (such as companies, partnerships, trusts or self-managed superannuation funds) should be drafted by an appropriately qualified and experienced solicitor to ensure they are properly drafted to achieve your intentions and to avoid any unwanted taxation consequences where possible.

A homemade will is likely to cause severe and expensive difficulties and delays for the family, and can be a false economy, with ultimately little comfort.

Get your Will Professionally Drafted

A professional will drafter is aware of the traps in drafting a will.

For example, is a bequest of property which happens to be mortgaged to be given subject to, or free of, the mortgage?

A professional will drafter will also be able to look at the wider issues generally known as estate planning to advise on whether one's affairs could be organised to better advantage. A professional will drafter is able to avoid Capital Gains Tax pitfalls. If you have a will professionally drafted, the savings in subsequent legal costs for the family are likely to outweigh by far the initial cost.

There are essentially three classes of professional will drafters; solicitors, the Public Trustee and Guardian, and trustee companies.

A. Drafting by a solicitor

The first possibility is to engage a knowledgeable solicitor to prepare your will. A good solicitor will advise you on the choice of executors and trustees (executors are normally also named in the will as trustees, even if the will does not expressly set up a trust). If your major beneficiaries are adults and have full capacity, it is common practice to appoint some or all of them as your executors. This gives the named executors the opportunity to decide when the time comes whether to administer the estate themselves, or to entrust the administration of the estate to a professional person.

If the major beneficiaries are minor children, some close members of the family or friends can be appointed as executors and trustees, but in this case the choice of executors and trustees is difficult and not without risk (the family members or friends may prove not to be up to the task), and it may be better to appoint a professional such as the Public Trustee and Guardian or a trustee company as executor and trustee. It is not usual to appoint your solicitor as executor or trustee.

B. Drafting by the Public Trustee and Guardian

The second alternative is to get the Public Trustee and Guardian to prepare the will. The Public Trustee and Guardian will do a well-drawn will at very little cost, where the Public Trustee and Guardian is named in the will as an executor and trustee.

For a breakdown of the Public Trustee and Guardians fees for preparing a will or for assisting with the administration of a deceased estate click here.

C. Drafting by a trustee company

The third alternative is to get a trustee company to prepare the will. Some trustee companies will do a will for free. Again, trustee companies will usually require to be named as executor and trustee if they are preparing the will.

After Making your Will

Where to Keep your Will?

It is important that you keep your will in a safe place, but it is just as important that it can be found easily, when the time comes. The court is most cautious about allowing an estate to be administered if there is doubt about whether there is a will because of the difficulty and unpleasantness involved in trying to claw back assets already distributed to what later turn out to be the wrong beneficiaries. In such a case the distribution of the estate could be held up for years.

Your solicitor will advise you about the best place to keep a will which may include:

• their firm's safe custody;
• the branch of the bank you normally bank at;
• the Supreme Court who also keeps wills; or
• the Public Trustee and Guardian who keeps original wills in safekeeping where they are appointed as an executor.

You should carefully consider whether you keep your original will at home, because, if there is a fire, the original and the copy may both be lost. Also, some disappointed would-be beneficiary might go through your papers when you are very ill, or after your death, find the will and the copy and decide to destroy both. This is a crime, but it might not be detected.

Making sure the Will can be Found after Death

There is no safe mechanism for making sure the will is found after death. The onus is on the testator to make absolutely certain that the will is found promptly after death. If you keep a copy of the will at home with your private papers, you should leave a note on the envelope containing the copy of the will saying where the original is to be found (including the bank safety deposit box number, if that is where the will is located).

List of Assets

Place a list of your assets in the envelope with the copy of your will. Assets may be hard to find. You should list bank, credit union savings accounts, superannuation, property, insurance policies, shareholdings, trusts and so on to make the task of the executor much easier.

Make a note on the list of assets saying that the list is NOT part of the will, and that you do NOT want it to have testamentary effect. This is important, otherwise a question might arise whether the list (even though it is not executed with the formalities for a will) should be included as part of the will.

Codicil to a Will

A codicil is a separate addition to an earlier will. You usually use it to correct an error in it or to make some small change. It is not usually a good idea to make a codicil because there is room for serious mistakes. A codicil has to be made with the same formalities as a will.

Changing a Will before or after Signing It

If you draft your own will, you may make a mistake in drafting and wish to correct it before the will is signed and witnessed. On the other hand you may, after signing the will and having it witnessed, wish to make a change to it.

Both may be done but special formalities must be complied with.

It is essential that every alteration in a will be signed near the alteration by the testator and by two witnesses (who need not be the same two witnesses who signed the will). The signatures must be made in exactly the same sequence and manner as if they were being made to execute the will itself. If the alterations are not properly signed and witnessed they will generally not have any effect and the will must usually be read as if the alteration had never been made. Section 11A Wills Act 1968 gives the Supreme Court power to admit to probate alterations that have not been formally executed.

Generally, it is better to execute a clean will rather than one containing alterations. So, redraft the will to eliminate corrections. If corrections or alterations have to be made after execution, redraft the will and execute it anew.

If you decide that some change needs to be made to your will, you should not attempt to alter the will yourself. You should consult a solicitor. The law reports are bespattered with cases where testators have written on their own, properly executed, wills, and the results are often drastically unsatisfactory.

Revoking a Will

Automatic Revocation by Marriage, Civil Union or Civil Partnership

A will is automatically revoked if you marry or enter into a civil union or civil partnership after having made your will, unless the will is expressed to be made in contemplation of that marriage, civil union or civil partnership (see s 20 Wills Act 1968). To remain valid after a union, a will made before that union should clearly state that it is made "in contemplation of my intended marriage, civil union or civil partnership to ... and is/is not conditional upon the marriage, civil union or civil partnership taking place".

Effect of Divorce and Termination of Civil Union or Civil Partnership

If you have made a will and subsequently your marriage, civil union or civil partnership is terminated then gifts to your partner become void when the union is terminated, and so does an appointment of the partner as executor (as well as some other appointments of the partner). The rest of the will remains valid.

There is an exception. If the will is expressed to be made in contemplation of dissolution of the marriage, then gifts to and appointments of the partner remain valid after the union is terminated (see s 20A Wills Act).

Revocation by Action of the Testator directed towards Revocation

There are several ways in which you can revoke your will (see s 21 Wills Act 1968). The most common are the following:

• by specifically saying in a later will that all previous wills are revoked. It is normal to include a revocation clause in a will, as it prevents worry about whether an old will might be lurking in the background. A revocation clause could take this form: "I revoke all previous testamentary acts"; or
• by destroying the original of the earlier will with the intention of revoking it.

Reviving a Will

When you revoke a will by destroying it, you then have no will at all. If you intended by destroying your will to revive an earlier will, your intention will be frustrated because a will cannot be revived in this way. An earlier will can become valid only if you re-execute the old will once again with the full formalities, or, if you execute a codicil which shows an intention to revive the old, revoked, will. Section 22 Wills Act 1968 deals with revival of wills.

It is possible that the Supreme Court might exercise its power under Section 11A Wills Act 1968 to give effect to a will which has been revoked, but which the testator now intends to be their will.

Amending or Revoking a Will if Testator has subsequently lost capacity

Pursuant to Part 3A Wills Act 1968, the court may, on application of any person, authorise that a will be altered or partially or fully revoked on behalf of a person who lacks the requisite capacity to make amendments to their will. See also commentary on statutory wills at Court Authorised Wills.