Wills and How to Get a Will Made
Your Last Will and Testament is an important part of the bureaucracy of moving to Australia and should not be over-looked. This article offers advice on how to make a will in Australia and discusses the three types of wills.
An Existing Will
It is possible to bring into Australia a will you have had created in your former country of residency. Australian legislation states:
A will made in (almost) any country shall be deemed valid providing it was made in conformity with the legislation then ruling in the country in which the testator (the person making the will) was living at the time that the will was made.
However, there is a problem for migrants to Australia. The will has to be proven to be legal. This requires official verification from lawyers in the country in which the will was written and by the Australian legal authorities. It then has to be submitted to the Supreme Court . Because of this, it is usually prohibitively expensive.
A far better solution is to have a new will written after your arrival in Australia.
The Three Types of Australian Wills
Australia recognises three different types of wills. It is essential to familiarise yourself with each type so you can better decide which will is most suitable for you and your family situation.
The most common type of will is an attested will, sometimes called a witnessed will. Every State has certain rules dictating how to create a legally valid attested will. However, there are three general requirements for any attested will:
- It must be in writing
- It must be signed by the person who is the subject of the will
- It must be witnessed by two people although some states are not stringent on this requirement
Witnesses must be credible and understand their role. They should not be someone who is due to benefit from the will.
Signatures for an Attested Will
Generally the signature may be: a full signature, an initial or even a mark such as an ‘X’. The person signing may use their full name, part name or even a nickname. Under certain special circumstances, the signature may be done by proxy, so long as the person making the will is present. This may be particularly important if the person who the will is about is physically disabled or incapacitated.
A Holographic Will is almost the same as the normal Attested Will but, rather than typed, it may be hand-written by the person making the will. In some States, no witness is required for this type of will.
A Nuncupative Will is an oral will. Some Australian states allow Nuncupative Wills when no property is involved. They are created on an audio tape. A variation of this is the Video Will in which the person making the will describes what they wish to leave upon their death. In most cases, a Nuncupative Will is considered to be less formal and therefore less binding than a conventional Attested Will. It means that such a will may be open to contest.
How to get a will made
The usual way is to go to a solicitor or lawyer. A quick Google search for a suitable company in your local area will provide many choices. A lawyer will charge according to the complexity of a will, but you should not expect to pay more than $200 for a straightforward individual will.
One word of caution; some lawyers offer a free service in exchange for acting as executors of the will. Avoid this because an executor’s fee is usually 6% which can obviously amount to a large sum of money.
The cheapest and easiest way to create a will is to buy a ready-made kit. These come in a couple of common forms but include standard texts, forms to fill in and advice booklets. They are available from many stationary stores and post offices throughout Australia. They are legally sound and far safer than any form of nuncupative will.
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