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How to draft your own will: provisions that should be included.

This article contains some practical tips for drafting or making your own will. A more detailed article on The Legal Requirements for a Valid Will provides information about the legal side of things and should be read in conjunction with this article.

Everyone who has some property and who doesn't want the state to distribute it after their death according to the intestacy provision priorities contained in the Succession Act 2006 should have a will. The intestacy provisions are contained in Chapter 4 of the Succession Act and can be viewed by clicking on the link.

At the outset we should stress that unless your will is very simple, your estate is small and it is unlikely to be controversial (contested - see the article Challenging a Will for more information) the wisest course of action would be to get a lawyer to draft a will for you. In fact, even if it is all of the above, it is still wiser to have a lawyer draft your will rather than attempt to do it yourself or use one of the many 'off the shelf' or 'do-it-yourself will kits.'

That said the following tips apply generally to anyone considering drafting their own will:

    Every will should contain a clause revoking all previous wills that have, or may have, been made.

    Every will should nominate an executor and trustee. An executor and trustee is often the same person. Essentially their role is to give effect to your testamentary intentions. They take care of the administration of your estate, from seeking probate through the Supreme Court (proving the validity of your will) to distributing your estate to your nominated beneficiaries.

    Every will should have a clause nominating alternative executors and trustees should your first choice decline or not be available for whatever reason. At Weblegal we also encourage you to consider the New South Wales Trustee and Guardian as a final alternative.

    Every will should properly enunciate the powers that the executor and trustee have in relation to your estate. Think about whether they can invest, sell, take out insurance, make repairs and maintain any property, and also how the cost of any such act is to be met.

    Every will maker should consider who is going to be a beneficiary (a recipient of a gift) very carefully and whether there are any preconditions which the proposed beneficiary has to meet before a gift is to be given, eg reaching a certain age. Will a trust have to be established for a period of time until those conditions have been realised? If so, the powers, responsibilities and even protections that a trustee is given and afforded should be explicitly spelt out.

    As well as considering who is to be a beneficiary consideration should also be given to who is left out of a will and who might also be able to bring an action against your estate (challenge your will) and the best ways of dealing with this possibility.

    Wills often contain provisions dealing with directions as to what is to happen to your body after you die and whether you have any funeral directions. Provision may also be needed for any pets that you might have at the time of your death.

We hope the above gives you some guidance or food for thought. Every will is different and needs to be tailored to individual circumstances. Some people with relatively straightforward circumstances may be able to draft their own will quite easily, others will not feel so confident or able. If you need assistance or advice in relation to a will we are able to assist. At Weblegal we charge a small flat rate fee for drafting most wills and provide accompanying legal advice and helpful documentation to assist you and those who you nominate to look after your estate after your passing.

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Weblegal can assist. Contact us if you would like to arrange a free consultation with no obligations. We can come to you.

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