The Testator: Legal Age, Mental Capacity and Undue Influence
In Australia, the person making the Will, also referred to as a testator, must be at least 18 years old and of “sound mind” to create a legally binding Will.
Being of sound mind generally means that you are aware of your actions when creating the Will. More specifically, this means that you are aware that you are creating a Will, understand the property that you own and are consciously deciding to whom you wish to leave your property.
Undue influence can occur when someone uses their relationship or position to persuade your decision making. Just like a contract, a Will can be found to be invalid if unduly influenced.
Mental capacity and undue influence are common grounds on which someone can challenge your Will. However, the burden of proof lies on the person to demonstrate that the testator was not of sound mind or was under undue influence at the time the Will was created.
The Will: Intent, Execution and Witnesses
It is hard to determine what your intentions were after you are gone. This is why your Will should use clear and precise language to remove any doubts or confusions as to its purpose and your intentions. This is why, for example, all Wills should start with “This is my last will and testament” as a way of noting that all previous instructions should be disregarded.
The execution and witnessing of a Will is a procedural requirement and therefore much more comfortable to fulfil.
To execute a Will the testator, or a representative on the testator’s instruction, must sign the Will document in the presence of two adult witnesses. By signing the Will document, you are demonstrating that you are aware of the content and intent of it and that you are free of pressure or threat.
Once completed, the witnesses also need to sign the Will attesting to the Will’s validity. By signing the document, your witnesses are testifying that the testator was of sound mind and knew what they were doing by signing their Will document.
Although not legally required, it is better if your witnesses are not directly set to benefit from your Will.
The Estate: Executor and Residual Beneficiary
Your estate must be fully distributed out to recipients upon your passing. Therefore it is required that you nominate at least one beneficiary who is set to receive the residual of your belongings. This person or persons are called the Residual Beneficiaries.
You also need a person who is going to gather and distribute your assets for you after you are gone. This is why it is a legal requirement that you appoint at least one executor. Your executor must be an adult at the time of your passing and cannot have been previously bankrupted. You can nominate your estate planning attorney to be your executor; however, they are going to bill the estate for their time.
Updates: Marriage and other changes
Marriage and divorce can have adverse impacts on your Will. If you get married after you created your last Will, or are divorced, the Will is generally automatically revoked. If you are contemplating getting married or divorced; however, you can create your Will to consider this scenario for it to remain valid.
Unlike a marriage, which is hoped would last forever, other things in our lives change rapidly. You may have a new child, buy a new house or even need to change your nominated executors. To make minor updated to your Will you can use a “codicil“.
Although there are no set formats for a codicil, there are legal requirements that should be considered. For example, the codicil needs to quote the date of the Will it is updating or amending. A simple mistake in this date can cause lengthy legal challenges that ultimately may rule the codicil as invalid. For this reason, it is recommended that you regularly review and update your Will to keep it relevant and up to date.