What is a will?

A will is a document that sets out how you want your estate (your property) to be distributed when you die. If you die without a will, you are said to have died intestate. In this circumstance your property will be distributed to your nearest relatives according to a predetermined legal formula which may or may not be in accordance with your wishes.

A “standard” will is where you leave all of your property and assets such as your house, money in a bank account, shares or other possessions you own, to your spouse and any children of the marriage. However, if you are in a de facto relationship and have children from a previous marriage or relationship, you can bequeath them property and assets. If you have complicated financial affairs, you will need to prepare a more comprehensive will. It would be wise to seek legal advice before this is done to ensure your wishes will be met.

Who can make a will?

For a will to be valid, you must satisfy one of the following sets of requirements:

• be at least 18 years of age and have sufficient legal capacity which means that you must have the mental capacity to understand the nature and meaning of legal documents.

• understand what a will is and what it does.

• understand what property you own, and to whom you will distribute it; or

• you must be less than 18 years of age and be married; or

• if you are less than 18 years of age, or you are not legally capable, you can still make a will, but it must be processed through the Supreme Court.

How can I make a will?

A valid will is one which is in writing, signed by you and is witnessed by at least two people who are present when you sign and who also sign in your presence. If a will isn’t created in this way it may not be valid.

If you are very ill and you want to make (or change) a will but there is concern that your legal capacity could be questioned, ask your doctor to prepare a medical report stating that you are not unduly confused by your illness or medication and you have sufficient legal capacity to make a will.  If you don’t obtain medical evidence of legal capacity, it may be easier for someone to challenge the will.

How can I change my will?

You can change your will by changing words, writing between lines, etc. However, you and the two witnesses must sign each change in the same way that you signed the will originally. The signatures should be as close as possible to each change, usually in the margin. If the changes you want to make to your will are major changes, then it may be better to create a new will which revokes all of your previous wills or, to do a formal codicil

The Department of Ageing, Disability and Homecare

provides a kit with information and forms about powers of attorney, enduring guardianship and advanced health-care options.
www.dadhc.nsw.gov.au