7 top legal tips to make your Will watertight

Your Will outlines your last wishes and how to distribute your estate and assets to the people you love or the causes you care about. Citro partner Gathered Here’s lawyer Rica Ehlers explains all the top tips to make sure your Will does the right thing by your loved ones.

By Citro partner Gathered Here

A valid Will must be witnessed by two people. But there are rules on who should – and shouldn’t – take on the job.

There are a specific set of rules that must be followed for a Will to be valid. Proper witnessing is one of the most important but, unfortunately, it’s where a lot of people make mistakes.

“I’d estimate that around half of all mistakes I see have something to do with the witnessing step,” says solicitor Rica Ehlers.

In Australia, the law sets out specific requirements for who can witness a Will. There are slight variations between states but some common criteria apply nationwide.

1. Witness your Will correctly  

Most importantly, the witnesses should be adults (18 years or older) and mentally capable of understanding the importance of the Will-making and witnessing process.

That means they should understand the potential impact of making a Will, be able to somewhat judge the competence of the Will-maker, and appreciate the importance of their role as witness.

In some states, any adult with full mental capacity can sign a Will. However, in most states, the witnesses cannot be a beneficiary listed in the Will, the child of a beneficiary, or the spouse of a beneficiary.

Even in states where any adult can legally witness a Will, it is often recommended that a completely impartial adult signs the Will. That includes any beneficiary, partners or family members of beneficiaries, and the executor.

This is to avoid any conflicts of interest that might arise and to minimise the risk that a Will might be deemed invalid as a result of undue influence.

“Someone totally independent, like a friend or neighbour, is often your best option,” says Ehlers.

“There is no requirement for your witnesses to be a JP or C-Dec, although they are eligible witnesses and you can have them witness if you’d like.”

What does the witness of your Will do?

The role of a witness is to confirm that the person making the Will (sometimes called the testator) is of sound mind and not under any undue influence.

They don’t have to read the Will, they just have to watch the Will-maker sign the Will and then sign in front of the Will-maker and the other witness.

The witnesses should sign every page, and print their names and addresses below their signatures. This is so they can be contacted if there is later any issue with the Will, and they can confirm they signed it and that the Will-maker was present, willing and able.

Will-makers and witnesses should also use the same pen as each other throughout.

Don’t just leave your Will under your bed, warns solicitor Rica Ehlers.

Your Will is an important legal document. It could make the world of difference to your loved ones and it’s essential if you want your final wishes carried out accurately.

Keeping your Will safe is of the utmost importance. You need to choose somewhere that will prevent accidental loss, unintentional damage or deliberate interference – but it also needs to be easily found and accessed when the time comes.

2. Store your Will properly 

“Don’t just leave it under your bed,” warns solicitor Rica Ehlers. “Good places include in your safe if you’ve got one, with your accountant or solicitor, or in a safety deposit box if your bank offers this service”

Wherever you choose to leave your Will, it’s important your executor knows where they can find it and they’re able to access it after you die. So it’s no good storing it in your personal safe if they don’t know where it is and have no way of ever accessing it.

Tips for Will storage

Once you’ve chosen a safe place to store your Will, there are other things you can do to increase the likelihood of your final wishes being carried out.

Let your executor know where your Will is kept: 

Tell your executor, and any other trusted individuals, where your Will is stored and how they can access it.

Keep multiple copies of your Will:

 Make multiple copies of your Will and keep them in various secure locations. This reduces the risk of losing the only copy and provides some evidence of your real intentions, if your original Will is tampered with.

Regularly review and update your Will: 

Review your Will regularly – at least once a year and whenever you experience a major change – to ensure it accurately reflects your estate and final wishes.

3. Update your Will when you hit milestones like retirement

It’s good practice to update your Will whenever you hit a big milestone, including retirement.

We spend a lot of our working lives preparing for retirement. Hopefully, by the time we get there, we have a nice nest-egg built up so we can live comfortably later on

But what would happen to that nest egg you’ve worked so hard to create?

We know it’s not exactly fun to think about, but it’s important to have a plan in place. Otherwise, your hard-earned money might not end up where you’d like it to.

How to write a Will when you retire

If you don’t have a Will yet, it’s time to write one. No matter how much is in your bank account or how many belongings you’ve collected over the years, everyone should have a Will.

Write a free online Will on Citro

Free online Wills are great for people with fairly straight-forward estate needs and without the desire to spend hundreds of dollars on lawyer fees.

With a free online Will, you can divide your estate among beneficiaries, make plans for pets, nominate guardians for children, pledge gifts to charities, give specific items to individuals and even leave instructions about your funeral.

If you don’t have a Will, completing one online will only take around 10 minutes and it’s a vast improvement on having no formal estate plan at all.

You can always update your Will at a later date or seek specialist help from an estate lawyer.

4. Get estate-planning advice that suits your needs

For some people, it’s more appropriate to seek professional estate-planning advice from a lawyer or solicitor. This may apply to you if:

  • You have a large and complex estate
  • You own multiple properties and investments
  • You own overseas investments
  • You wish to exclude someone from your Will and believe they may contest it
  • You are currently separated from your spouse

Read more on our estate matters article.

5. Make sure your superannuation is in order

For lots of Australians, superannuation is one of the biggest investments they ever make. Often, when a person dies, there is still some money left in the superannuation account.

If you want to choose who gets your superannuation in the event of your death, there are a couple of things you’ll need to do.

Firstly, you can make a Binding Death Benefit Nomination, letting your fund know who you would like as the recipient.

However, there are certain rules around who can receive your super balance. It can only go to:

  • A spouse or de facto partner
  • Someone who lives with you and depends on you financially
  • To your personal legal representative

If you nominate your personal legal representative as the sole beneficiary of your superannuation, the remaining balance will be added to your estate when you die and can be divided according to your Will.

We highly recommend both speaking to your superannuation fund about the options available and seeking legal advice if you would like to nominate a personal legal representative.

To understand more about superannuation, read Citro’s Calculating Retirement guide.

6. Consider charities and your benevolent wishes 

During our lifetime, many of us support causes close to our hearts and make regular donations to charities we care about. Increasingly, people are choosing to do the same when they die.

Often, people are able to pledge larger gifts in their Wills, compared to what they would comfortably be able to give during their lifetime.

Even a gift of 1% of your entire estate could make a huge difference to a charity you care about, while still letting you provide financially for the loved ones you leave behind.

Read more on our advanced planning article.

7. Don’t forget your pets in your Will

Pets are part of the family. Writing a Will can make sure they’re cared for after you die.

Australia is a nation of animal lovers. More than two-thirds of Australian households own a pet with an incredible 29 million animals living across 7 million homes.

However, while most of us love and care for our pets in life, many pet owners overlook the importance of including their pet in their Will.

If you don’t include pets in your Will, it might not be clear who should look after them after you die. 

This can lead to emotional stress for the people you leave behind and it may take longer to find your pet a stable and loving home.

In some cases, your pet may end up in a shelter or with carers who don’t have the money, ability, or inclination to look after them.

By including a pet in your Will, you can appoint an appropriate carer and can even assign funds that should be used for the care of your pet.

This gives pet owners peace of mind but also ensures beloved companions will continue to have a happy life, even if their owner dies first.

How to include pets in your Will

Unfortunately, you can’t name a pet as a beneficiary in your Will. However, there are a number of ways you can put plans in place for their future.

Nominate a guardian

You can nominate a guardian for your pets in your Will. This won’t be legally binding (you can’t force a person to look after an animal) but it will let your loved ones know who you would prefer as your pet’s guardian.

Be sure to let the guardian know in advance and to ask them if they would be comfortable caring for your animals if you died.

You can nominate a guardian for your pets by writing a free online Will.

Nominate a beneficiary

Pets are considered property when it comes to writing Wills. By nominating a beneficiary, this person will inherit your pets. Again, we suggest talking to this person to make sure they’re willing and capable of looking after your animals.

Pledge a gift

You can include monetary gifts in your Will. You may want to give some money to the person who will look after your pet, so they can use that for the animal’s future needs. Read more on gifts and loans.

Create a trust

You can create a trust to be used for the future care of your pet. You’ll need to nominate someone to be the trustee and their job will be to use the funds appropriately, for the future care of your pet.

Did you know? Majel Barrett-Roddenberry, the widow of Star Trek creator Gene Roddenberry, created a $4 million trust for her dogs.

Leave instructions

When writing a Will, you can include general information about how your pet should be cared for. For example, you may want to let your loved ones know which vet your pet goes to, any foods they may be allergic to, or tips on keeping them happy and calm.

You can include a pet in your Will for free, by writing an online Will. Just add your pet’s information and assign a guardian to care for them.

Citro member offer:

All Citro members can create a free, legally binding online Will using our free Gathered Here online Will service.

You can create your Will in around 10 minutes online, and it's completely free thanks to the support of Gathered Here's charity partners. Read more about whether an online Will is right for you.

Advice given in this article is general in nature and is not intended to influence readers’ decisions about investing or financial products. They should always seek their own professional advice that takes into account their own personal circumstances before making any financial decisions.

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