The law about wills in Australia is different in each State. This information only applies to Western Australian law about wills.
What is a will?
A will is one of the most important documents you will ever sign. It is a legal document setting out who gets part or all of a person's property when they die. Your property is called your "estate". A badly written will often lead to delays and disputes. It is best to use a lawyer if you can, rather than writing your own will.
Why make a will?
The most important reason for making a will is to make sure that, after your death, your property is distributed in the way you would have wished it to be.
What happens if I don't have a will?
If you do not leave a will, your property will be distributed in a way laid down by the law. When a person dies without leaving a will, they are said to have died "intestate". Intestacy also occurs when a deceased person has left a will that only deals with part of their estate.
See Dying without a will for more information.
Should I nominate an executor?
Another important reason for making a will is to appoint your executor who is the person named in your will to ensure that all of the requests made in your will are carried out.
The executor has a very important role. It is not necessary for an executor to have any special qualifications. The executor must be:
- a responsible person
- over the age of 18 years, and
- a person that you believe will carry out their duties properly.
You should get the consent of the person you wish to make your executor because they do not have to accept the position.
If, following your death, the person you wanted to be the executor refuses to act, anyone interested in your estate can apply to administer it. You should make sure that an alternative person is available and refer to this person in your will.
For more information, see Duties of an executor.
What do I do to make a will?
A valid will must be in writing and must be signed and witnessed correctly. It should also be dated at the time of signing.
For more information on how to validly execute a will and on who can be a witness to it go to the Citizens Advice Bureau website to view Make a Will: A Fact Sheet.
Some newsagents sell will forms. This standard form is useful because it helps you to remember the most important points to be included. These are:
- The document should say that it is will of the person making it - the testator - and should give their address.
- Clearly dating the document is important because the latest will in time automatically replaces any earlier will.
You do not need to include your occupation or marital status.
When considering what to leave any beneficiaries in your will, you should be aware that in certain circumstances, the Supreme Court can change how you have dealt with your property after your death. It can do so if you have not made adequate provision for any of your dependants who you should have made some (or better) provision for in your will. For more information about this power of the Supreme Court and when it can be exercised, it is advisable to see a lawyer.
See Challenging an unfair will for more information.
What sort of property can I include in my will?
In your will, you may leave any part of your property, including personal items, real estate or amounts of money to particular people. While it is not necessary to list every item of your property, your will should deal with all your property. The best way to do this is to use expressions like "all of my property of whatever kind" or "all my remaining property of whatever kind". If your will fails to deal with all your property, any property not dealt with will be divided among your relatives according to law. This kind of division might not be what you wanted.
There are some assets you can't leave to another person in a will. For example, assets from your superannuation or insurance fund (you usually nominate a beneficiary when you take out the policy).
You may wish to make special arrangements for a number of things, for example:
- disposal of your body or organ transplants
- payment of your executor
- the occupation of your home
- the release of a debt owing to you
- a gift to charity.
You can generally write these types of things in ordinary language so that they can be understood. If you are in any doubt, or there is a large amount of property involved, you should see a lawyer.
Can I make arrangements for my children in my will?
If you are the parent of a child, you may wish to appoint someone to be the guardian of that child after your death. You can do this in your will, but not all such appointments are effective. Get legal advice.
Can I change my will?
Yes. You can change your will as often as you like. The best way to change it is to make a new will.
A codicil is a legal document that is used to alter something in an earlier will. People may use a codicil instead of making a new will. A codicil must comply with all the legal rules that apply to a will.
Codicils can cause problems. Legal Aid WA does not recommend the use of codicils. Get legal advice.
Where should I store my will?
Your will must be kept in a safe place such as with your bank or your lawyer. You should tell your executor where your will is kept. You can also deposit your original will for no charge in the Public Trustee's WA Will Bank.
What if I get married after making my will?
If you marry after you have made a will, your marriage cancels your will unless it was made in "contemplation" of marriage. If, when you make your will, you are about to get married, you should include a statement that says you wrote your will "in contemplation of marriage", that is, when planning this marriage, and you should name the person you intend to marry. If you then marry that person, your will is not cancelled.
As there are other situations where the will is not cancelled when you get married, if you have married after making your will you should get advice from a lawyer to find out if the will is valid. Alternatively, you could consider making a new will to include the changed situation.
What if I get divorced after making my will?
If you get divorced or your marriage is annulled on or after 9 February 2008 your will is cancelled unless:
- a contrary intention is expressed in your will or
- there is other evidence showing this intention.
So if you do not want your will cancelled when you get divorced you should state this in your will. If you then get divorced your will is not revoked.
If you were divorced before 9 February 2008 your will was not cancelled when you divorced. You may want to consider a making a new will to include the new situation.
What if I have a complex will?
The preparation of a will becomes more complicated as more situations are covered. Any will more complicated than a simple will should be given to a lawyer to write.
Examples of matters that may make a will complicated are:
- the estate is large
- a business partnership, company or family trust is involved
- transfer of property other than the family home
- children from more than one relationship
- people involved who live overseas
- property is located overseas.
- State your full name and address on your will.
- Make sure the will is clearly dated.
- State the full name and address/es of your executor/s.
- Add the attestation clause, that is, that the will maker signed in the presence of two or more witnesses and that they signed in the presence of the will maker.
- Never attach or pin anything to a will.
- Never erase any part of a will.
- Keep your will in a safe place and make sure your executor knows where that is.
Where can I get more information?
Legal Aid WA does not give legal advice in this area.
Contact the Citizens Advice Bureau on (08) 9221 5711 to see where you may be able to get assistance with drafting a will for a fee.
Contact the Public Trustee WA on 1300 746 116 which offers will drafting for a fee. You can also phone to obtain a form to store your will in the WA Will Bank.
Aboriginal artists can get more information about wills and a sample will for visual artists from the Artists in the Black website.
For information on finding a lawyer and questions you should ask a lawyer, see Lawyers.
Contact the Law Society of WA on (08) 9324 8600 for referral to a lawyer who specialises in this area.
Last reviewed: 13/11/2015