Wills
A will is a legal document that sets out how you wish your property to be distributed after you die. For example, your will might say that you want all your property to go to your partner after you die, or it might say you want your property divided among many different people. The people who receive property under your will are called ‘beneficiaries’.
A will is one of the most important documents you will ever sign. 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 wanted it to be.
You can make a will at any time. However, you must have capacity, or be of sound mind, to make a will. ‘Capacity’ is a legal term that means you can make reasoned decisions for yourself about personal, financial, and legal matters. Also, a will made by someone aged under 18 is not valid.
It is best to get legal advice before you make a will and if possible, ask a lawyer to write it for you.
Legal Aid WA does not draft wills. You may be eligible for help from lawyers working in our Elder Rights WA service. They can give you free advice about making a will, but they cannot draft your will for you. There are free or low-cost legal services available to help you make a will. For more information on where you can get help see our Get help with Wills and estates webpage.
This webpage has information on what can be included in your will apart from property, what can happen if someone is left out of your will, changing your will and what happens if you don’t make a will.
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What can I set out in my will?
You can set out how you want your property, also called your 'estate', (for example, your personal items, real estate, and money) distributed.
You can also set out other matters in your will, such as:
- Whether you wish to be buried or cremated.
- Whether you wish to donate your organs.
- Payment to your executor.
- Forgiving a debt owing to you.
- A gift to a charity.
How do I make sure what I set out in my will is carried out?
In your will you must also nominate a person who will carry out the wishes set out in your will. This person is called the 'executor'. You should:
- Think carefully about who you wish to appoint as your executor and choose someone who is trustworthy.
- Ask the person you wish to appoint as executor for permission to appoint them.
- Consider appointing an alternative executor in your will in case your first choice of executor refuses to accept the appointment or is no longer able to perform the role.
How to make a will
As a will is an important legal document that must follow strict legal requirements, it is best to seek legal advice, and have it drafted by a lawyer to ensure that it is legally valid and accurately reflects your wishes. It is important for a will to be properly signed and witnessed. A badly written will often leads to delays to, and disputes over, the distribution of your estate.
What happens if I die without a will?
If you do not make a will, the law determines how your property will be distributed. The rules around this are complex and may not reflect how you wish your property to be distributed. For more information see our webpage Dying without a will.
What if someone is left out of my will?
If your will does not properly look after a person that you had a duty to provide for, that person may be able to apply to the Supreme Court to challenge your will. In some circumstances, the Supreme Court can change the distribution of your estate. For more information see our webpage Challenging an unfair will.
Can I change my will?
Yes. You can change your will as often as you like. Again, you must have capacity. If you have a will, you should review it regularly. You should check that your will continues to reflect what you want to happen to your estate. Changes may have occurred to your financial or family circumstances, for example, one of your beneficiaries may have become unable to work for health reasons and you wish to leave them more money.
If you wish to change your will, it is important that a lawyer who specialises in wills assists you in making changes to your will or in writing a new will.
What if my relationship has changed?
If you get married after you have made a will, your marriage cancels your will unless it was made in contemplation of marriage. If you have married after making your will you should get legal advice from a lawyer to find out if your will is valid.
If you divorce after you have made a will, your will may be cancelled. You should seek legal advice to find out if your divorce has affected your will.
Resources
- Legal Aid WA Infosheet - Making a will
- Artists in the Black
Information and a step-by-step guide to drafting a will for Aboriginal visual artists.
Reviewed: 13 May 2023
