The start of a new year is the perfect time to sit down and take stock of your present circumstances. Are you happy with your job, relationship and current living arrangements? Do you have a dream of undertaking further study, starting a new sport or hobby or simply taking more time out to relax?

More importantly, if you have a Will, then it is a great time to consider whether your Will accurately reflects your wishes, and whether your circumstances have changed significantly since it was created, which may mean it is invalid.

For example, marriage, separation, divorce or entry into a new relationship can all be sufficient reasons to invalidate an existing Will.  You may also want to include new family members (especially if a baby has been born since your last Will was completed).

Sitting down with your solicitor for an estate planning consultation is an important task that many of us delay due to time constraints. We understand that discussing your wishes after your death is an uncomfortable and sometimes unpleasant task, however, it may also be one of the most important set of instructions you provide in your lifetime.

Having a current Will and other estate documentation in place in the unfortunate event of your passing can assist your family and loved ones in an often-traumatic time, providing them with a roadmap of your intentions, which can relieve any stress and anxiety and enable your wishes to be carried out promptly and efficiently.

If you don’t have a Will, then now is a goodtime to get your personal matters into order and make one, to ensure peace of mind and assurance for yourself and your family members.

Making a Will without the assistance of a professional is not advised. The main goal in creating a Will is to ensure that your wishes are fulfilled after death. Even the most simple or self-explanatory do-it-yourself kit can leave errors or gaps, which will mean that the executor may not be able to administer the Will without extensive court intervention. If the court cannot determine your wishes, they may need to disregard the entire Will or fill in the gaps, which may mean your wishes aren’t fully administered.

Some important or interesting facts about making a Will

–          It is important to remember as your circumstances change that you will need to adjust your Will.

–          You will need to have two witnesses to your Will, who are both over 18 years old and will not be beneficiaries under your Will.

–          To make a Will, you must be 18 years or older, though in some circumstances you can obtain court approval to execute a Will for someone under 18.

–          Consider where you would like your Will stored- it is not normally advisable to keep these at home as your Will won’t be considered to exist if it cannot be found at the time of your death. It is advisable to keep these in safe storage with a bank or your solicitor.

–          If you get married, your Will is considered revoked unless the Will provided for the future marriage. Similarly, if you get divorced, your spouse referred to in your Will becomes ineligible to receive any benefits you provided for in the Will, and will no longer be able to be the Executor (administrator) of your Will.

–          You may only appoint four (4) Executors to your Will.

–          When making your Will:


  • Be specific and remember specific gifts or promises as the Court will not allow the bestowment of a gift they can’t identify.
  • Remember to provide for things like costs to the Beneficiary in delivery of a gift if it is particularly onerous;
  • Remember the financial impact of the person who you bestow the gifts to (i.e. will their government pension be affected or will they incur a large tax bill as a result of the gift?)
  • You can nominate a guardian for your children if they are under 18 years of age, however, stating who you would like them to live with will only provide evidence in court proceedings, and will not be binding. The Family Court will need to decide on the living arrangements of the children through a special order.
  • If you do not want a particular child/ family member/ spouse/ dependant to receive a benefit you must state specific reasons to explain this decision in the Will, as Division 5 of the Succession Act 1961 provides that family can apply to be maintained through the estate if they are not provided for in the Will. Your reasons will be provided as evidence in any such proceedings.
  • A residuary clause should cover all property you have forgotten to include in the Will. You can nominate the recipients of any residual property in this clause.
  • Provide instructions as to your wishes for burial, cremation or your funeral. Your Executor must ensure these wishes are complied with.

 –          Anyone whom you make a beneficiary must survive 30 days after your death to receive any benefits.

–          You must provide the full name(s) of the beneficiary/s and it is helpful to provide their address, particularly if they are a friend or acquaintance.

An important consideration which is often overlooked when contemplating your assets in the event of your passing is your superannuation.  It is becoming more and more common that superannuation benefits are one of the largest assets you may hold at the time of your death, and it is worth noting that your Will can not specifically cover your superannuation. 

Accordingly, your superannuation benefits must be dealt with separately to ensure that your benefit is paid to your nominated beneficiary.

The Superannuation Industry (Supervision) Regulations 1993 stipulate that the death of a member is a compulsory cashing condition, which means that the benefit must be paid out upon the death of a member.  Accordingly, it is vitally important that measures are put into place beforehand to ensure that the benefit is paid out as you intended.

We encourage you to take the time to read through our previous articles in relation to these matters (see links below for your ease of reference), and perhaps take some time to consider your estate planning requirements and then attend an appointment at our office to discuss your needs with one of our experienced and professional estate planning lawyer

Affinity Lawyers offers in-depth estate planning consultations to enable you to discuss your requirements with a professional and experienced lawyer.  Don’t put off this important task any longer – it is the beginning of a new year and the perfect time to have your affairs put in order.  Telephone our office on 07 5563 8970 today to arrange your consultation.