Drafting a Will is one of those things we tend to put off thinking about. No-one wants to spend too much time pondering their own demise or what will happen afterwards.
It’s important though, so let’s make it quick! Below is a 4-step checklist for how to draft a Will that is legally binding and watertight.
First thing’s first – who’s Will is this? When reviewing a Will, the Court needs to be able to clearly identify the Testator; that is, the person who is documenting their wishes and to whose Estate this document refers.
It’s very important to put your full legal name in your Will (no nicknames or shortened names, OK “Bob”?). It’s also important to put any other identifying information in your Will to verify that it is genuinely your Will. Most of the time, your current full home address will do the trick. If you don’t want to include your full address for any reason, it’s acceptable to just name the suburb (but a full address is better).
"THIS IS THE LAST WILL AND TESTAMENT of me Jane Rosie Doe of 1 Begley Street, Adelaide in the State of South Australia."
"THIS IS THE LAST WILL AND TESTAMENT of me Jane Rosie Doe of Adelaide in the State of South Australia."
You need to name an Executor in your Will whose job it will be to do all the things you want done. This person will be responsible for gathering and distributing your Estate’s assets, settling debts, and managing affairs until Probate is granted. You also need to make sure your Executor benefits from your Estate in some way.
There are two main factors to consider when choosing who your Executor will be:
a. Your Executor must be a legal adult at the time of your death. Since you don’t know exactly when you will die, it’s best to choose someone who is an adult already.
b. Your Executor must be willing and able to perform this duty once you’ve died. You can talk to the people you have in mind and make sure they’re OK with it, but to be safe you should nominate alternative executors in case the person you want is unwilling or unable once your time finally comes.
Again, make sure you use the full legal name of your proposed Executor so the Court can clearly identify them.
"I appoint my Brother Richard Koerstz to be the executor and trustee of this my Will."
"I appoint my Brother Richard Koerstz to be the executor and trustee of this my Will provided that if my said Brother Richard Koerstz dies before me or during the administration of my estate or is unable or unwilling to be my executor then I appoint as a general substitute my Cousin Jasper Dale Koerstz to be the executor and trustees of this my Will in Richard Koerstz’s place as the case may be."
Naming beneficiaries to receive certain items or assets is central to drafting a Will. But you should also name a Residuary Beneficiary. Residuary beneficiaries receive anything else in your Estate that is not expressly given to someone else.
Giving specific things as gifts is good, but there need to be instructions for what’s left over. For example – you might leave your car to one person, your house to another, and your antique doll collection to a third, then anything that’s left over after those have been given out (the “balance” of your Estate) go to a fourth person (your Residuary Beneficiary).
Best practice is to nominate residual beneficiaries in tiers – for example, spouse, then children, then grandchildren – and to make instructions in case any of them predeceases (dies before) you.
"I give the whole of my estate of whatever nature and wherever situated to my trustee Upon Trust to pay my just debts, funeral and testamentary expenses and to divide and pay the rest of my estate to my spouse John Fredrick Doe for their sole use and benefit absolutely provided that if my said spouse dies before me then I give the whole of my estate or whatever nature and wherever situated to my trustees Upon Trust to pay my just debts, funeral and testamentary expenses and to divide and pay the rest of my estate for my Son William Andrew Doe as survive me and reach the age of twenty one (21) years.
Notwithstanding Anything written above I direct that if my child dies before me leaving a child or children who do survive me then that child or those children shall take, and if more than one then as tenants in common in equal shares, the share in my estate that his her or their parent would have taken had their parent not die before me."
Your Will needs to be Executed (i.e. signed and witnessed) correctly. In Australia, this means that you need to sign and date your Will in the presence of two witnesses who also need to sign and date your Will.
It should go without saying that your witnesses need to be legal adults. But of equal importance is they should not be your beneficiaries or otherwise stand to benefit from your Estate. If they do, it leaves your Will open to be contested or challenged.
"Dated this 12th day of August 2019.
Jane Rosie Doe
Signed by Jane Rosie Doe as and for a Last Will and Testament in the presence of both of us being present at the same time and we attested Jane Rosie Doe’s signature in the presence of that person and each other.
Witness 1: (Signature)
Print Name: Nate Matthew Biscoe
Address: 39 Marloo Street, Magill SA 5072
Occupation: IT Manager
Witness 2: (Signature)
Print Name: Kaitlyn Alderson
Address: 77 Devon Steet, Thebarton SA 5031