A will is a document that a person can make to decide what happens to his or her property after death. It must be in writing and signed by the person making the will in the presence of two witnesses, who must also sign the will together.
    A will professionally prepared by one of our will lawyers can ensure those whom you nominate deal with your property how you want it to be. And that means your beneficiaries avoid unnecessary expenses required to fix an invalid will or defend against a family provision claim.
    Contact us now to get your will and estate plan started. Or read on to learn more.
    Most people require only a simple will. However, if you have an existing family trust or estate plan, or if you have a split family or a large estate, a complex will or estate plan may better serve your needs. We can also discuss the substantial tax and asset protection advantages associated with wills and estate planning.
    To find out more about estate plans, click here.
    There are many types of property you cannot give by will, For including:
    • Jointly held property – this passes automatically to the surviving joint owner (or owners) on the death of the first dying joint owner — it does not form part of the estate of the first person dying. (If you own property with another person you may hold it either as ‘joint tenants’ or as ‘tenants in common’. It is easy to confuse the two, and it is important to be sure what type of tenancy you have in the property. See ‘joint tenancy’ and ‘tenancy in common’.)
    • Property held in trust – this property will pass to the nominated trustee to hold for the beneficiaries of the trust according to the terms of the trust.
    • Shares – a will cannot give certain shares in private companies.
    • Partnership property – a will can give your interest in partnership property, but not partnership property itself.
    • Superannuation – your superannuation arrangements may not entitle you to dispose of your superannuation assets by your will. The rules differ from scheme to scheme — you should discuss the matter with the administrators of your superannuation fund.
    • The proceeds of life insurance policies – a nominated beneficiary of the policy will take precedence over the terms of the will. Here, the proceeds of the policy do not form part of the estate. If you wish the proceeds of the policy to go to someone other than the nominee, you cannot do it via the will: you must change the nomination. If you are not sure whether you nominated a beneficiary, or who you nominated, consult the insurance company concerned.
    • Capital guarantee deposits – a will nominating a beneficiary cannot give some capital guarantee deposits (for example, with friendly societies, and some banks).
    • Property sold but not yet transferred – property you have contracted to sell, but not yet transferred, cannot be given by will.
    Making a valid will is the safest way to have your property dealt with according to your final wishes. If you die without making a valid will, the rules of intestacy (a legal formula) will govern the distribution of your assets. This might mean that your assets do not end up with the person you would have chosen. It also means that you have no control over who distributes your assets. Even if you’re happy to have your assets pass according to the law, consider the possibility that people you never intended to benefit may end up with part of your estate. 
    Wills can be as simple or as complicated as you wish, but your family will always be better off if you have one. Yes, there is legislation in every State and Territory to compensate for when there is no will, but like most safety nets it’s a second-best option, by a long way.
    Reviewing your will every couple of years is important, so it is an accurate reflection of your testamentary wishes. However, there are certain events that should always prompt you to review and amend your will.
These may include:
    • separation;
    • divorce;
    • death of a relative;
    • birth of a child;
    • adoption;
    • change of name;
    • receiving a large inheritance;
    • becoming seriously ill;
    • making a purchase or sale of a substantial asset;
    • establishing a self-managed superannuation fund;
    • a beneficiary becoming disabled or at risk;
    • if an executor dies, becomes unwilling to act as executor or becomes unsuitable due to age, ill health or for any other reason;
    • when a beneficiary dies;
    • if you have specifically left any property which you subsequently sell, give away, put in trust or into a partnership, or which changes its character or name. (This applies particularly to specifically bequeathed shares in a company which restructures its share capital);
    • taxation laws change.
    Things to consider...
      If you marry, your marriage revokes your will unless the will is expressed to be made in contemplation of that marriage. Entering a domestic partnership or personal relationship can also affect your will.
      Ending a domestic partnership or personal relationship can affect your will and your legal obligations. The matter is complex, and the law is not uniform throughout Australia. Some states are considering proposals for change.
      You may revoke or make a new will in different terms without consulting or informing your husband, wife, or partner. We emphasise however that if one of you takes this action and consults us about it, our ethical duty will prevent us from drafting the new will for you and, further, will require us to tell the other of you about your intentions.
      Do not add to or delete from the will after execution. Consult a solicitor if you want to change or revoke your will because even the simplest changes must be correctly done, or they may have disastrous results.
      If you later wish to make a list, letter or other document which relates to your affairs after your death, consult a solicitor. The danger is that it may not be clear whether the document is intended to be testamentary (that is, a will or codicil), and litigation about the status of the document may result.
    A person making a will is generally free to dispose of his property in any way that they see fit. However, the Inheritance (Family Provision) Act 1972 (SA) provides an exception.
    That Act allows certain relatives, including the spouse and children of the deceased, to claim greater provision for themselves if the deceased did not make adequate provision for their maintenance and support in his or her will.
    A will lawyer is able to advise you how to best avoid the possibility of a long and expensive family provision claim against your estate. Click here for more information.
    If a will is made but is invalid—for example, because it does not comply with the required formalities — an application can be made to the Supreme Court to have the invalid will treated as a valid will provided it is clear that the deceased person intended the document to be his or her will.
    However, such an application is not always successful and, even when it is successful, it is an expensive process that can be avoided by having a valid will prepared by a lawyer.
    An Enduring Power of Attorney is a document that authorises a person that you choose to make financial, proprietary and other legal decisions, on your behalf. Usually, it takes effect only if you become incapable of making the decisions yourself. However, it can be made to take effect straight away.
    Click here to view our Estate Planning video and Questionnaire
    Our will lawyers can prepare your will and advise you how to avoid costly mistakes. We can visit you in your home or in our office in Mount Barker. We regularly visit clients in nursing homes and hospitals to make it even more convenient for you.
    Our lawyers can prepare your will for as little as $375, and even less if you request two wills for a couple or a package with an Enduring Power of Attorney or Advance Care Directions. We typically charge based upon time completed for complex wills and estate plans, however a fixed fee price may be negotiated. Click here for details.
    Contact us now  now to get your will and estate plan drafted by one of our expert will lawyers, or keep reading to learn more.
    Administration of an estate – term used for the work of the executor or administrator in carrying out the terms of a will
    Adult child – a child over 18 years of age
    Alteration to a will – a change to a will. These are not permitted unless they are properly executed (see codicil)
    Alternative dispute resolution – settlement of a dispute outside the court process (see collaborative law and mediation)
    Attestation or attestation clause – a signature clause in a will
    Beneficiary – person or organisation benefiting under a will
    Bequest – gift of an identifiable asset (not money) to person/organisation in will. However, the terms bequest (not money) and legacy (money) are often used interchangeably
    Blended family – a family formed by a combination of two or more families following remarriage(s) after divorce
    Child – in estate law includes an adopted child or step-child
    Codicil – a properly executed change or addition to an existing will
    Collaborative law – a process of alternative dispute resolution which does not involve a third party mediator. The parties settle as between themselves via their lawyers. It precludes the lawyers from taking the case on to a court hearing
    Common law jurisdiction – a jurisdiction using English common law as its basic legal system (e.g. Australia, New Zealand, England and Wales, Canada)
    Contingent bequest – gift of an asset dependent upon an event occurring
    Deductible gift recipient (DGR) – a DGR is an entity that may receive income tax deductible gifts. All DGRs are endorsed by the Australian Taxation Office
    De facto spouse – a person of the opposite sex living in a domestic relationship of at least 2 years duration.
    Devise – a gift or real property in a will
    Discretionary jurisdiction – a legal jurisdiction which allows judges to decide on essential matters based on the particular facts of a case
    Disentitling conduct – conduct which disentitles an applicant from family provision
    Estate – the totality of the property which the deceased owned or had some interest in at the time of death
    Estates in fee simple – legal term denoting real estate
    Equitable doctrine of undue influence – a doctrine in equity which provides that a person acting under undue influence (that is, whose free will is overborne by someone else) will be able to seek redress. This is not the same as undue influence in will cases, though some argue that it should be
    Equity – a part of the English law system, based on principles of fairness, originally separate from common law, but now part of the overall system used in Australia and in other common law countries
    Execution – the formal will-making process by signature and witnessing
    Executor (m)/executrix (f) – a person appointed by a will-maker to ensure that the intentions in a will are carried out. It is no longer essential to differentiate these terms on the basis of gender. However, judges still often do so in judgements
    Family provision – term used in Australia and New Zealand for provision made for family members in a will
    Family provision application – an application to a state Supreme Court for provision or further provision from an estate
    Family protection – term used in New Zealand for family provision; alternative term used is testator's family maintenance
    Forced share – a fixed share of an estate left to a family member
    Forfeiture – the loss of the right to an inheritance by egregious conduct e.g. killing the testator
    Grant or Grant of representation – the grant of probate or letters of administration
    Holograph will – a will written in the will-maker's own handwriting
    Incorporation by reference – the incorporation of other documents into a will, especially a document setting our written instructions for a will
    Insane delusion – a false delusion held by a will-maker while suffering a mental illness
    Inter vivos – while alive
    Interlineation – an alteration to a will which is written between the lines of the existing will (see codicil)
    Intestate – Dying without leaving a will, or leaving an invalid will, so that the property of the estate passes by the laws of succession rather than by the direction of the deceased
    Joint will – a single will of more than two persons (usually applies between spouses)
    Legacy – a gift of money to a person/organisation in will
    Letters of administration – a document giving an administrator the right to deal with a will
    Life interest – a lifetime gift, such as giving someone the right to live in a property until that person's death. On the death of the person given the life interest, the asset or capital is distributed according to the will
    Lucid interval – an interval of time when a person suffering insane delusions may make a valid will
    Mediation – the process of settlement of a family provision claim by a third party mediator
    Moral duty – the court-established moral claim of a will-maker's spouse, children and dependants to provision from the will-maker's estate
    Mutual wills – wills which leave assets to each person in the same way (commonly applies between spouses)
    Pecuniary legacy – fixed sum of money expressed as a gift in a will
    Personal representative – a general term for a person whose duty it is to administer an estate. A personal representative can be an executor, an administrator, or a public official such as the Public Trustee
    Prescribed Private Fund – a tax effective vehicle for placing money, property or benefits in a fund for charitable giving purposes
    Probate – the granting of the right to administer a will
    Republishing of a will – the re-execution of a prior will
    Residuary legacy – remainder of your (money) estate left as a legacy after bequests and specific legacies have been distributed and all debts cleared
    Residue of estate – possessions, property and money remaining after all debts are settled and all gifts are distributed in accordance with the will
    Reversionary legacy – a legacy consisting of the assets or money left after a life interest has been fulfilled
    Revival of a will – the revival of a revoked will
    Revocation of a will – the cancelling of a will by a specified happening e.g. by making a new will
    Specific bequest – the gift of an identifiable asset such as jewellery or furniture
    Spouse – a legally married husband or wife
    Substantial compliance – a principle which allows courts to admit wills to probate even if they do not strictly comply with the succession law of a state. The rule applied is one of testamentary intention
    Succession law – the law relating to wills and estates
    Testate – dying having made a will
    Testamentary – referring to a will
    Testamentary capacity – the capacity of a person to make a valid will. The test applied is one of sound mind, memory and understanding
    Testation – the statements of intent in a will
    Testator (m) /testatrix (f) – person who makes a will. It is no longer essential to differentiate these terms on the basis of gender. However, judges still often do so in judgements
    Testator's family maintenance – alternative (older) term for family provision
    Undue influence – influence amounting to coercion placed on a will-maker, which will invalidate a will
    Will – a legal document expressing the intentions of a person for the distribution of their assets after death
    Will-maker – a plain English term now often used instead of testator or testatrix
    Witness – a person who is present at the signing of a will by the will-maker