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19 April 2022

It Depends – Do I need a Will?

Why do you need a Will, and can you make your own? In this edition of ‘It depends’, partner Hayley Mitchell talks about Wills.

Why do you need a Will, and can you make your own? In this edition of ‘It depends’, partner Hayley Mitchell talks about Wills.


Hello, everyone, and welcome to It depends.

Today I’m going to be covering, do you need a Will?

Do I need a will?

So, in all likelihood, the answer to this question is probably yes. But the simplicity or the complexity of your Will will depend on your individual circumstances.

Why do I need a will if I don’t own any assets?

This is a common question that we get asked, and there are a couple of reasons why you should have a Will even if you don’t have a lot of assets as yet. The first reason is your Will will nominate an executor. Most banks and government organisations will want to deal with your executor after you’ve died. Now, if you don’t have a Will and you haven’t nominated an executor, then some of those institutions may require someone to make an application to the court to be appointed as the administrator. This adds to the costs and delays to administer your estate.

Second, you’ve probably got some superannuation. Even if you have a low balance in your superannuation account, you might have a default life insurance policy attached to it, and usually these will pay out or a couple of hundred thousand dollars after your death. So, that’s a fairly substantial amount that will warrant you making a Will. If you don’t have any superannuation dependents to leave your super to directly, then your Will becomes really important because it will nominate who you want to receive your superannuation balance. In this scenario, your Will will be important, but you’ll probably need a binding nomination as well. There are a couple of It depends sessions that will be relevant here. See our session on whether or not you need a binding death benefit nomination and what happens to your superannuation when you die.

The third reason to have a Will is even if you don’t own much now, you might own something in the future. And if you haven’t had the chance to make a Will, then if you die without a Will, your assets will be distributed in accordance with the intestacy rules. Now these are rules provided under the legislation that dictate certain family members that would be entitled to receive your estate. So, this might mean that you benefit someone that you really had no intention on giving your assets to after you died.

Can I make my own will?

This is not recommended. Drafting your own Will or using a Will kit that you can get from the Post Office or something downloaded from the internet is likely to cause more problems than what it will solve. A Will needs to be carefully worded to ensure that the legal interpretation is clear and correct. If the legal interpretation is not clear, then it may mean you need to make an application to the court for the court to determine what the Will means. The costs of doing this are likely to be far more than it will cost you to seek proper advice to get a simple, Will drafted for you.

Secondly, a Will needs to be witnessed properly in accordance with the legislation. If the Will is not witnessed properly, then it will require an application to the court to prove the Will as an informal Will. And you can see our It depends session on informal Wills. There is also a chance that your Will will be held to be invalid and won’t operate at all and will have been a total waste of time. So, even if you’re young or you don’t have a lot of assets yet, it is important that you have a Will in place.

To seek further advice about estate planning or Wills generally, reach out to a member of our private clients team.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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