Australian Civil Liberties Union

Your Rights 2005

Chapter 11


Making aWill Executors. Letters of Administration.Testators. Family Maintenance.


Making a Will. Anyone over 18 can make a valid will. Also if you are in the army, air force or navy or are married you can make a will before you are 18. Everyone should make a will. People who made wills many years ago should check to see that the terms of these wills are still in accordance with their intentions and are still valid. For example, if a will made before marriage is not clearly expressed to be made with marriage in mind, the will is automatically revoked on marriage. A will may be amended or completely cancelled by a later will.

The first rule for making a will is not to do it yourself but to see a solicitor. This is an extremely technical area in which a layman can fall into traps without knowing it. The small legal costs incurred when a solicitor makes out a will may save quite large sums of money which may have to be spent if the terms of the will are proved to be uncertain or if the  proper formalities for executing the will have not been carried out.

If, however, you have to make out your own will and intend to use the law stationer’s form the following instructions should be observed. The will should be signed by the testator (the person making the will) and his signature witnessed by two people. A beneficiary under the will, or the husband or wife of the beneficiary should not be a witness. It is also undesirable for the executor of the will to be a witness.The testator and the two witnesses should use the same pen. The testator and the two witnesses should remain present together until all three have signed.The testator should sign the will in the presence of the two witnesses. He should sign the will at the foot of each page of the will and also at the very end of the will.The witnesses’ signatures should appear after that of the testator in every place that the testator has signed it. Some of these requirements have been relaxed in some States, but it is suggested that the above practices always be followed. The will should be placed in a safe place, such as a bank box, and close relatives should be told where the will has been left.

Testators may direct that their bodies are to be buried or cremated and indicate how much should be spent on their funeral and any monumental work over their grave. Testators may direct that their bodies be offered for medical research or transplants.They may bequeath specific items such as a motor car, however only items of value should be specifically bequeathed.

Codicils. A will may be altered by a codicil which should refer to the will it is changing, indicate what clauses in the will are to be changed, and state that the rest of the will remains valid. The codicil should be executed in the same way as the will being amended, and the same witnesses should be used.

Executors. The executor is the person appointed in the will to administer the estate of the deceased. The executor should be a responsible relative or friend, a professional adviser such as a solicitor, or a corporate executive.The executor’s job is to pay the debts including the funeral expenses and taxes and to distribute the property of the deceased.

The first duty of the executor is to apply for probate of the will to the Supreme Court.

The grant of probate confirms that the will is the last and valid will of the testator and that the executor is the proper person to administer the estate. A grant of probate is usually needed, no matter how small the estate. Except where the estate is very complicated, the grant of probate can be made fairly rapidly after a solicitor is instructed to apply. It should take no more than three months.

The executors may be given wide powers to help them carry out the testator’s intentions such as power to carry on a business, invest, and advance monies for the education of children.

If there is any doubt about the will in the mind of the executor, he should apply to the Supreme Court for clarification of the terms of the will. This is an expensive procedure and another reason to make sure that your will is properly drawn up. Certain gifts by the testator during his lifetime within three years of his death may be included in the estate.

If a beneficiary dies before the deceased, generally speaking his share will lapse. Every well-drawn will should contain a clause which catches all the property, which has not been previously or properly disposed of. If a beneficiary dies before a testator, his lapsed share would be distributed according to the terms of this clause. Probate and estate duty is no longer payable to the Commonwealth Government or to State Governments.

Letters of Administration. What happens if the executor dies before the testator? Usually there will be two executors so this won’t matter. If there is only one executor or if both executors die before the testator, it is necessary to apply to the Supreme Court to appoint a person to administer the estate. If the beneficiary is a child of the testator, who dies before the testator, his share will be distributed among his children. Letters of administration are also required where there is no will (an intestacy) or the “will” is found to be invalid. The estate is then distributed by rigid rules to those people (usually relatives) entitled by law to a share.

Testator’s Family Maintenance. A married person should make proper provision for the family in a will. If the estate is likely to be small, generally it should all go to the surviving spouse. If proper provision is not made for the family, any members of the family may apply to the court, under the Testators Family Maintenance Act (enacted in all States of the Commonwealth), for “adequate provision” out of the estate.

Will Kits. Phone: 0397512677, or visit


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