Skip to content
Get free consultation!

How Do I Make a Will?

< Back

CM Law's Ultimate 50 List: Making a Will #2: How Do I Make a Will?

Introduction

Creating a will is a vital step to ensure that your assets are distributed according to your wishes after your death. However, improperly drafting a will can lead to it being contested or even deemed invalid, causing unnecessary financial strain, prolonged legal battles, and emotional distress for your loved ones. This guide provides a comprehensive overview of the steps involved in making a valid will, common pitfalls to avoid, and the importance of ensuring your will is correctly drafted to prevent future disputes.

Step-by-Step Guide to Making a Will

1. Understand What a Will Is and Its Importance

A will, also known as a "last will and testament," is a legally binding document that details how your assets, including property, investments, and personal belongings, should be distributed after your death. It allows you to appoint an executor to manage your estate, designate beneficiaries, and nominate guardians for minor children. The primary purpose of a will is to ensure that your wishes are respected, minimize potential disputes, and provide clarity for your loved ones during a difficult time.

2. Create a List of Assets and Debts

Start by compiling a comprehensive list of all your assets and liabilities. This should include real estate, bank accounts, investments, personal property, digital assets, and any outstanding debts such as mortgages or loans. A clear inventory of your financial situation will help you make informed decisions about how to distribute your assets and ensure that your estate is managed efficiently.

3. Choose Your Beneficiaries Carefully

Decide who you want to inherit your assets. Beneficiaries can include family members, friends, or charitable organizations. It is crucial to be specific when naming beneficiaries to avoid ambiguity. For example, instead of stating, "I leave my house to my children," specify each child's share or indicate whether the house should be sold and the proceeds divided equally. Clear, precise language reduces the likelihood of disputes among beneficiaries.

4. Select an Executor

An executor is responsible for managing your estate according to your will. This person will handle tasks such as paying off debts, filing taxes, and distributing assets. Choose someone trustworthy who is capable of handling these responsibilities. Consider naming an alternate executor in case your first choice is unable or unwilling to serve. Ensure that the person you select is aware of their role and prepared to act in your best interests.

5. Appoint Guardians for Minor Children

If you have minor children, it is essential to appoint a guardian in your will. The guardian will be responsible for their care and upbringing if both parents pass away. Choosing a guardian is a significant decision; consider who would best provide for your children's needs and discuss your decision with the potential guardian to confirm they are willing and able to take on this responsibility.

6. Draft Your Will Carefully

Drafting your will with clear, unambiguous language is crucial. While you can create a will on your own or using online tools, consulting with a solicitor can help ensure that your will complies with local laws and is free of ambiguities that could lead to disputes. A well-drafted will should include:

  • A Declaration: Stating that this is your last will and testament.

  • Personal Information: Including your full name, address, and any other identifying details.

  • Revocation Clause: Clearly stating that this will revokes all previous wills and codicils.

  • Bequests: Outlining how you want your assets distributed, including any specific gifts to individuals or organizations.

  • Executor and Guardian Appointments: Naming the executor(s) and any guardians for minor children.

  • Signatures and Witnesses: Ensuring the will is signed and dated in the presence of two witnesses who are not beneficiaries or related to beneficiaries.

7. Ensure Proper Execution of Your Will

For a will to be legally valid in New South Wales, it must be signed by the testator (the person making the will) in the presence of at least two independent witnesses who are not beneficiaries or married to beneficiaries. The witnesses must also sign the will in the presence of the testator. This step is critical to prevent claims of undue influence, fraud, or forgery.

8. Store Your Will Safely

Store your will in a secure place, such as with a solicitor, in a safe deposit box, or with a trusted individual or service. Inform your executor and close family members of its location to ensure it can be easily accessed after your death.

9. Regularly Review and Update Your Will

Regularly review and update your will, especially after major life changes such as marriage, divorce, the birth of a child, or acquiring new assets. An outdated will can lead to unintended consequences, such as assets being distributed contrary to your current wishes or disputes among beneficiaries.

10. Consider Additional Legal Documents

Consider preparing a power of attorney and an enduring guardianship document along with your will. These documents allow you to appoint someone to make financial, legal, or medical decisions on your behalf if you become incapacitated, ensuring that your interests are protected during your lifetime.

Common Mistakes That Can Lead to a Will Being Contested or Deemed Invalid

  1. Failure to Sign the Will Correctly
    A will that is not properly signed and witnessed may be declared invalid. Ensure that all legal requirements are met, including having two witnesses who are not beneficiaries.

  2. Ambiguous Language
    Unclear or vague language can lead to disputes among beneficiaries. Be specific in your instructions and consider seeking legal advice to avoid misunderstandings.

  3. Not Updating the Will Regularly
    Failing to update your will after significant life changes can result in assets being distributed in ways you no longer intend, which could lead to disputes and challenges.

  4. Overlooking Digital Assets
    Digital assets, such as online bank accounts and social media profiles, should be included in your will to ensure they are managed according to your wishes.

  5. Ignoring Tax Implications
    Certain distributions may have tax implications. Consult with a solicitor or financial advisor to structure your will in a tax-efficient manner.

The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.

Case Study: The Impact of an Improperly Drafted Will in New South Wales

Introduction

In a significant case in New South Wales, an improperly drafted will led to a costly legal dispute that depleted the estate and caused emotional distress among the beneficiaries. This case highlights the importance of ensuring that a will is properly drafted and executed.

Case Overview

Estate of Drury [2020] NSWSC 1157: Margaret Drury, a retired businesswoman, passed away with a will that was deemed invalid due to improper witnessing. Her estate, worth over $5 million, included multiple properties, investments, and personal assets. Due to the will's invalidity, the estate was subject to intestacy laws, resulting in a protracted legal battle among her three children and her long-term partner.

Behaviour of the Participants

The family conflict quickly escalated as Margaret’s children from her first marriage accused her partner of exerting undue influence over their mother. Her eldest daughter, who felt she had been unfairly excluded from the will, appeared in court tearfully recounting how she had cared for her mother in her final years. Her voice quivered with emotion as she described feeling betrayed and sidelined, desperately fighting for what she believed was her rightful share of the estate.

Margaret's partner, left with little financial provision due to the will’s invalidity, pleaded for recognition of their relationship and the years they had spent together. His face displayed desperation as he argued that Margaret had intended to provide for him but had not followed the correct legal process to validate her wishes. The court hearings were marked by raw emotions, with family members publicly airing their grievances and the atmosphere filled with tension and heartache.

Legal Process and Court Involvement

The Supreme Court of New South Wales was involved to resolve the dispute, applying intestacy laws to determine how the estate should be distributed. The process included:

  • Multiple hearings to establish the validity of claims by Margaret’s children and partner.

  • Expert testimony from forensic accountants to assess the estate's value.

  • Failed mediation attempts to resolve the dispute amicably, leading to further legal proceedings.

Financial Consequences

The estate suffered substantial financial losses due to ongoing legal fees and administrative costs, which exceeded $700,000. Additionally, the prolonged dispute resulted in the forced sale of two properties at below-market value, causing a further loss of $1.5 million. The total cost to the estate was more than $2.2 million, significantly reducing the inheritance available to the rightful beneficiaries.

Conclusion

The Estate of Drury case illustrates the severe consequences of an improperly drafted will. It emphasizes the need for careful planning and adherence to legal requirements to prevent disputes, reduce financial losses, and maintain family harmony.

Statistics on Wills and Estate Planning in NSW

  1. Intestate Estates: Approximately 35% of estates in NSW are handled without a valid will.

  2. Average Legal Costs: The average cost of legal fees for intestate estates in NSW is around $150,000.

  3. Time to Settle Intestate Estates: Estates without a valid will take, on average, 24-36 months longer to settle.

  4. Dispute Frequency: Over 45% of estate disputes in NSW involve contested wills.

  5. Financial Impact: Intestate estates typically lose 20-30% of their value due to legal costs and delays.

  6. Executor Challenges: 20% of contested estates in NSW involve disputes over the executor's role.

  7. Guardianship Issues: 30% of estates involving minor children lack clear guardianship provisions.

  8. Digital Asset Inclusion: Less than 25% of wills in NSW account for digital assets.

  9. Charitable Bequests: Only 12% of wills in NSW include provisions for charitable donations.

  10. Awareness of Legal Requirements: 60% of Australians are unaware of the legal requirements for creating a valid will.

Essential Resources: Government and Non-Profit Organizations

Government Resources:

Non-Profit Organizations: