Avoid disputes. Protect your wishes.
Here’s how to get it right the first time.
If you’ve searched “how to write a Will,” you’ve probably seen a flood of cheap kits, free templates and advice promising quick results.
Maybe you’re about to go on a holiday with your partner, leaving the kids behind. Perhaps you’re going into surgery and thought it’s better to be safe than sorry. Whatever lead you here – making a Will (the correct legal terminology in Australia) isn’t about ticking a box. It’s about making sure your wishes are clearly understood and legally enforceable. This guide covers everything you need to know to make a valid Will in Australia, limit the scope for disputes and make the process as smooth as possible for your loved ones.
What is a Will?
A Will is one part of a complete estate plan. It is a legal document where you record how you want to distribute your assets, who looks after your minor children, and who administers your estate when you die. If you die without a Will, known as dying intestate, your assets are left to be distributed in accordance with legislation, which may not necessarily be the way you want them distributed
Other parts of an estate plan include a Power of Attorney, Enduring Guardianship or Advanced Health Directive. Each document plays an important role in ensuring your financial affairs and health and lifestyle decisions are carried out if you’re unable to make them yourself. They are separate documents to the Will.
What makes a legal Will in Australia?
There are strict requirements for a valid Will such as how it is signed and witnessed – but if you meet those, you could write your Will on a napkin.
If that’s the case – you’might be wondering whether you may as well write your wishes on a piece of paper and tuck it away. Or go to Australia Post and pick up a $24.99 Will kit or use an online Will template? Again – as long as it is written (typed or by hand), signed and witnessed – you have yourself a Will.
What you don’t have though, is the peace of mind of knowing that your Will is valid, binding and that your exact wishes can be carried out as you intend.
If your Will contains an error, omission or ambiguity, it’s your loved ones who deal with the fallout. Gifts can and do fail based on technicalities. Contesting a Will or disputes over one can result in delays in family members receiving their share of your estate, family breakdowns or even costly court proceedings.
The thing about a Will is it only comes into effect when you’re no longer around. You can’t be asked to clarify an ambiguous term or to fill in an important missing piece of information, If you’ve worked hard, built up assets, raised a family and want your wishes to be honoured your way, this is the kind of life admin worth doing right and having control over.
Generally speaking, most Wills are easy to create – in writing, signed by you and witnessed by two people who aren’t beneficiaries under the Will. Sounds easy, however it’s the detail and the language used, not just the formalities that also matter. Factors like children, shared assets, business ownership, family trusts, blended families, or even sentimental heirlooms can all add complexity. That’s why how you write your Will and who helps you do it makes all the difference.
How a Lawyer Helps You Write a Legally Valid Will
The role of a lawyer is three-fold.
- To listen.
A good lawyer will ask all the right questions to understand in detail your family and relationship dynamics and the particulars of your asset pool. How your assets are held is also an important factor. Understanding your wishes is critical. - To advise.
With full understanding of your situation and wishes, a good lawyer’s role is then to give advice and guidance. An experienced lawyer for wills and probate will immediately see potential issues or red flags that need attention. They may identify scope for your Will to be challenged and recommend additional layers of protection to help protect against a successful challenge. . They will identify areas that may get in the way of your Will being executed exactly as you want it. With this advice, they will make recommendations for your consideration before getting to the part that others want to start at – the writing. - To make the Will
When a lawyer is writing a Will, they use careful, purposeful and precise language to ensure your wishes are understood without any ambiguity and your wishes can be carried out as you intended. The skilful crafting of the Will includes helping you think through situations you may not have considered such as what happens to an asset if one of your intended beneficiaries predeceases. . . Future proofing the Will is something most lawyers will do to the full extent of the law.
The scope of a lawyer on Wills is broader than you think
Preparing a Will includes:
- Guidance on what assets form part of your estate.
- Advice on the different ways in which you can provide for your family members or close friends as beneficiaries.
- Advising on any potential tax liability arising from the terms of your Will.
- Conversations about the important role of and how to choose an executor. how to choose an executor
- Ensuring the clear unambiguous expression of your wishes in your Will.
- Ensuring your Will is executed and witnessed correctly to ensure it is legally binding.
- Storage of the Will in the safe custody of the firm
How to Prepare for Writing a Will
Lawpoint kicks off with an interview that will take you through a list of questions to get you started. However, it’s safe to say you will need a list of all your assets and how these assets are owned It is important to ensure your lawyer knows if any of your assets are owned through an enttity such as a company or a trust.
This includes property, investments, bank accounts, shares and the like. Even if they’re overseas – write them down. Your lawyer will tell you the implications – as some countries do not recognise Australian Wills and you may therefore need to make a separate WIll in the overseas country your other assets are held in.
Start thinking about how you would distribute this pool of assets and to whom.
If you have kids under the age of 18, decide on a guardian and any wishes you have for your child/children’s future, should both parents pass away.
The more thought you give to this upfront, the quicker the process will be.
How to Write a Will: Step-by-Step Process
Writing a Will is usually straightforward when it’s requested under normal (non-urgent) circumstances:
- Quick call – We start with a 10-minute phone call to understand your needs and whether your Will is simple or more complex.
- Clear pricing – For simple Wills (which is most Wills), you’ll receive a fixed-fee quote upfront based on our understanding of your needs.
- You complete a questionnaire – We send you a short form that guides you through the process of capturing all of the important information, including, most importantly, your wishes. Write it in your own words.
- We clarify and advise.
- We’ll come back to you with questions and areas of clarification and discuss the implications of your wishes.
- We draft and explain your Will.
- We send you a draft Will and talk you through the draft to ensure that it aligns precisely with what you want.
- You sign it – You visit our office to sign it and have it witnessed. Just bring your ID and we take care of the rest.
Can I Write a Will in Hospital or in an Emergency?
It’s not uncommon for people to only think about their Will when they’re sick in hospital or about to undertake major surgery.
A Will can be prepared within 24 hours on short notice in urgent situations and on compassionate grounds. However, the lawyer must be satisfied that the individual has the capacity to provide instructions and understand the effect of the Will If a person lacks mental capacity or is significantly cognitively impaired such as with dementia, unfortunately, it’s too late to make a Will. If there is any doubt, a medical report may be required as to the Will maker’s capacity.
The individual must also be able to sign the Will. Some lawyers will attend hospital to ensure that happens, bringing along a second independent witness.
Write your Will today
Writing a Will and planning your estate isn’t just about checking boxes on a will kit. Doing it right, with the guidance and expertise of a lawyer, gives you control, protects your loved ones, and brings peace of mind knowing your wishes will be carried our with clarity and confidence. Estate planning is best done when you are in a position to spend time thinking clearly and deeply about your wishes. When you work with a lawyer, you’re taking a proactive step to protect the people and legacy you care about most.
Whether you get married, divorced, have children, or acquire new assets, your Will needs to be updated accordingly. A lawyer can provide ongoing guidance and make sure your estate plan evolves with you.
Speak to our team today about how to write a Will and take control of your legacy.
