Last updated 5 December 2016
A will should contain:
- a clause appointing an executor or executors to carry out the terms of the will. Any person who is 18 years of age or older may be an executor, as long as they do not lack mental capacity. The Public Trustee or a trustee company may also act as executors. Most of the major financial institutions in Australia offer this service. A testator should consider appointing more than one executor, particularly when one or more of the proposed executors are the same age or older than the testator. Appointing more than one executor is also a safeguard to ensure that the executor actually carries out the testator’s wishes, because executors must act jointly and unanimously. However, s 48 of the Succession Act 1981 (Qld) (Succession Act) provides that a grant of probate or letters of administration shall not be made to more than four people
- clauses containing gifts of property. Before drawing a will clause disposing of real property, say a gift of a house or land, it is important to know how the particular property is owned. A title search will determine how two or more owners hold the property. They may hold the property as ‘joint tenants’ or as ‘tenants in common’, equally or in other specified shares. It is essential that the testator is fully aware of how the property is owned so that their intentions can be made clear in the will. If the ownership is by joint tenants, the testator cannot dispose of the property by will unless he becomes the surviving joint tenant before their death. However, a testator can dispose of their share of a tenancy in common. And sometimes, the title search may disclose that the testator is a ‘life tenant’ and so cannot dispose of any interest in the property at all
- a residue clause so that the will deals with all of the testator’s property. If a residue clause is not included and the testator fails to mention a specific item of property, the result will be a partial intestacy, which will mean that any property not specifically disposed of will pass according to the rules of intestacy
- an attestation clause, which should be placed at the end of the will, beside or below the space allowed for the signatures of the testator and the witnesses. The following is a standard attestation clause:
The testator signed this will in the presence of both of us, being present at the same time, and we signed it in the presence of the testator and each other.
If this clause or a clause having the same effect is not used, an affidavit will be required from one or both of the two witnesses confirming that they both witnessed the signing of the will. This affidavit must be tendered when an application for probate is made. If a proper attestation clause is not used and both witnesses die before the testator or cannot be found after proper enquiry, it may be difficult to obtain a grant of probate. However, the will may be upheld as an informal will if the requirements of s 18 of the Succession Act are met.
A will may contain:
- a clause containing burial instructions. Generally, it is the executor’s duty to attend to funeral arrangements and the burial or cremation of the deceased’s body. Any wishes expressed by the testator in the will are not necessarily binding on the executor, except if it contains a direction that they are to be cremated, as an executor is required to carry out that direction (s 7 Cremations Act 2003 (Qld)). Burial instructions in a will are of little use if the will cannot be readily located after the testator’s death. It is important that any specific wishes regarding burial instructions (including a preference for cremation, or burial with someone or somewhere in particular) be made known to relatives, friends or people likely to be responsible for such arrangements before the testator’s death
- a clause donating organs for transplant purposes. Testators can include their name on the Australian Organ Donor Register. It is not enough to merely state an intention to donate organs or body parts in a will, as usually a will is read too late after the testator’s death for the organs to be used. It is strongly recommended that next of kin be notified of any arrangements that have been made, so that the appropriate action can be taken after death without undue delay. The consent of the next of kin is essential under ss 22 and 23 of the Transplantation and Anatomy Act 1979 (Qld)
- a clause donating a body or body parts for research (for more information contact the School of Biomedical Sciences at the University of Queensland)
- a clause appointing a guardian for minor children. A guardian can be appointed to act in the event of the death of one or both parents. However, a guardian whose appointment takes effect on the death of only one parent will be required to make decisions together with the surviving parent regarding the long-term care and welfare of the child. Any dispute may have to be resolved by the court.
Gifts to interested witnesses
If a beneficiary witnesses the will, the gift to that beneficiary may be invalid, unless:
- there are two other witnesses who are not beneficiaries under the will
- all of the interested beneficiaries consent in writing to the interested witness taking the gift
- the court is satisfied the testator knew and approved of the disposition, and it was made freely and voluntarily (s 11 Succession Act).
Beneficiaries do not have to be named personally in the will to be disentitled if they sign it. It is sufficient if there is a general reference, such as ‘my children’. For example, if a will says ‘I give everything to my children’, and one of the witnesses is the testator’s son, then any gift to that son from the will may be invalid.
Similarly, an interpreter or translator whose services have been used in preparing the will may not be able to take the benefit of any gift left under the will.
To avoid unnecessary legal costs, it is best to ensure that two completely independent people witness a will.
Use of legal jargon
A will does not have to contain any particular legal jargon. The important thing is that the testator’s wishes are clearly expressed.
Essentially, a will must state that it is the will of the testator and that, upon death, the estate is to be distributed in accordance with the testator’s directions contained in the will.