What is a will?

A will is a legal document that explains how you want to distribute your property and assets after your death. It names the people you want to act as executor of your estate, the people you want to receive your property and possessions and the people you want to appoint as guardians of your children. The person making the will is known as the testator and those receiving benefit under the will are known as beneficiaries.

Who can make a will?

Any person over the age of 18 years old can make a will, however exceptions do apply where a will is made by a person under the age in contemplation of marriage or married. It is important to make a will especially when you have family and dependants.


Why make a will?

 A will is the only way that you can ensure that your assets will be distributed according to your wishes. If you do not make a will, you are said to have died intestate. A court will appoint a trustee to administer your estate and your property will be sold and distributed according to a strict formula outlined in the Probate and Administration Act 1898.Your friends and charities may not be included in the distribution of your assets

When is a will valid?

 A will is valid when it is in writing (handwritten, typed or printed) and signed by the testator. The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses, present at the same time and at least 2 of those witnesses attest and sign the will in the presence of the testator, but they do not have to be present together at the time they sign.

Only a court can determine whether a will is valid (enforceable) by granting probate. To grant probate the court must determine that the document is made in manner that conforms to the legislative requirements. If your will is not found not to be enforceable by the court, then your property and assets could be disposed of as if you were intestate.

What property can I distribute in my will?

Your property or possessions include everything you own at the time of your death such as your home, land, vehicles, bank accounts, benefits of insurance policies, furniture, boat, investments such as shares, jewellery and art. Your superannuation entitlement is not strictly speaking, property or assets that can be left in your will. This is only possible where there is a current binding death benefit nomination directing the trustee of your superannuation fund to pay your beneficiaries or the trustee exercise their discretion to

pay the benefit under the terms of your will.

Why do I need to appoint an Executor?

You should appoint an executor to handle your financial affairs after you die. An executor can be your spouse, a family member, a friend or your solicitor. Appointing an executor is something that you should consider carefully and discuss with the person you wish to appoint executor.

Will a marriage or divorce affect my will?

Yes, if you made a will before you were married it will be automatically revoked, unless it was made with the marriage in mind. In the event of a divorce a will made during the marriage will be revoked, where a gift is made in favor of your former spouse

How will Antwan Lawyer help me?

  • We will make sure that you will is valid, that it is properly drafted, signed and witnessed.
  • We will make sure that your will reflects your wishes and intentions accurately.
  • We will advise you of the Family Provision Act and ensure that you have met your responsibilities by providing adequately for those whom you have a legal obligation under the act in order to prevent any future challenges to your will.
  • We will advise you of the capital gains tax implications upon the sale of any of your assets.
  • We will guide you in choosing an executor for your will, taking into consideration the importance of this role and ensuring that your choice of executor is willing and capable of meeting the demands of this role.
  • We will keep the will in a safe place for you.

Who is eligible to contest a will? 

Contesting a will is possible in New South Wales under the Family Provision Act 1983.To contest a will you must be eligible under section 6 of the Act, which provides that the following class of people can make an application to have the will contested:

a.    Wife or husband; or

b.    De facto wife or husband, includes persons in a same sex relationship   or

c.    Child or

d.   Former spouse or

e.    A person who was at any particular time wholly or partly dependant on the deceased and:

i.    Either a grandchild of the deceased; or

ii.    Was at any time a member of a household of which the deceased person was a member.

When should you contest a will? 

An application to contest a will should be made as soon as possible but must be made within 12 months of the date of death of the deceased; however extensions may be granted where sufficient cause can be shown.

Does your case have merit? 

If you believe that you are an eligible person and that you have been left without proper provision for your maintenance, education or betterment in life because you were not provided for under a will, then you may have a strong chance at challenging the will. Please call Antwan Lawyers to obtain confidential advice as to whether or not you have any rights, even if you have been left out of a will.

Please do not hesitate to “Call Us” for immediate professional advice 

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