Make a will
How to write a DIY Will by Paul Jackson, April 2020 - February 2021
There is no exact format for a Will in Queensland EXCEPT that it:
Must be in writing, and
It must be signed by you, and
Your Will must be signed by two witnesses who witness you signing.
Following steps 1, 2 and 3 means your Will in Queensland is drafted and executed according to the writing and execution requirements of section 10 of the Succession Act 1981 (Qld).
Next thing to consider before you start writing your Will is your testamentary capacity. This means you understand what you are doing generally in life, and have the ability to organise your personal affairs. Cases seem pretty clear that the courts will try not to interfere (too much) if all the facts and circumstances around your Will being written show that you knew what you were trying to do, even if you didn't do it possibly totally correctly. (There are cases about people writing their Will on a wall, and of course now, more cases of text messages, videos, and recordings. All those things can be a document BUT listen up, going down those formats may send your Will to lawyers that will gobble up your estate arguing whether you meant to give things away).
Make your Will in writing, and
Sign it, and
Get your Will signing witnessed by two people (and also make sure those two people are not going to receive anything from the Will. Only in very special circumstances can they receive anything. Best idea, get two people who are not going to receive anything from your Will).
Before you write your Will, think about it. Think about it real good!
These are what is known as the three certainties. Think about it, they will help you write your Will.
Certainty of Object - exactly who is to receive the thing you are giving away - don't just say to my friends, say 'to Bill, Barry, Sam and Sally'. If you want to exclude someone, say who that person is, and maybe also say why you are excluding them.
Certainty of Subject Matter - exactly what is the thing is you are giving away. - don't just say my car, say my blue ford mustang. Don't just say my investment unit, say the 3 units at 59 Suchandsuch Street.
Certainty of intention - Be specific you understand you are giving something away in your Will. Don't say I hope my neighbours can find some use for the car, say I specifically give my neighbours Tim and Sam my blue ford mustang.
So now you can start writing, and here are some basic tips I offer with no liability, only the hope that if you are going to have a crack at a do-it-yourself Will - you may as well have a good crack at getting it as good as possible.
Do not just say "all my worldly possessions" or "all my money"
No one can tell what that is. You're asking your executors (the person that administers your Will when you die) to try and audit your mess. Be clear what it is you are giving away, and where it is. Bank account numbers, names, people.
Put the Will in a safe place
Or make a digital copy.
Specifically any car and superannuation (see below) should be separate from everything else.
It is important to include your car as a specific gift, because a car is not considered part of 'household chattels'.
A good way to include anything else (except your car) in and around the house.
If you give something to someone and they have died (since you wrote your Will or even after you die but before your Will is read eg a car accident with related people), then who would you give the thing to next? and if that person died, who next? In Land Law they say 'no land without a lord' so make sure your land doesn't fall through a crack to the government! This is all a bit more tricky, but again, try to explain what you want to happen because this will help if there is any arguments after you die.
Very importantly when writing a Will, be very clear in your language.
Do not say words like "I hope", "I desire", "it is my wish", "in the understanding", "it is my belief" etc etc, these are precatory words and not clear enough. Say want you want, be very clear as if issuing a command.
Clear words to say like:
"I appoint", "I leave", "I specifically give", "I leave on Trust to my executor to do/ for the purpose of", "I leave on Trust to my wife for the benefit of our children" - it's all about construction.
In all cases legal advice, or one can also say, good drafting, will make your intentions clear.
A common mistake is to include superannuation in a Will, however that is not binding on your Executor. To make a binding nomination for your superannuation use the binding nomination form available from your superannuation provider. This nomination will last 3 years, before it needs to be renewed. Keep this up to date. By using this method, your superannuation avoids being included in your estate and is paid directly to the nominated beneficiaries in your nomination form. For example 75% to my wife, and 25% to my daughter. This leaves your Will to attend to your house, land, car and other possessions.
Succession Act 1981 s 10
How a will must be executed
(1) This section sets out the way a will must be executed.
(2) A will must be—
(a) in writing; and
(b) signed by—
(i) the testator; or
(ii) someone else, in the presence of and at the direction of the testator.
(3) The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.
(4) At least 2 of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other.
(5) However, none of the witnesses need to know that the document attested and signed is a will.
(6) The signatures need not be at the foot of the will.
(7) The signature of the testator must be made with the intention of executing the will.
(8) The signature of a person, other than the testator, made in the presence of and at the direction of the testator must be made with the intention of executing the will.
(9) A will need not have an attestation clause.
(10) A person who can not see and attest that a testator has signed a document may not act as a witness to a will.
(11) If a testator purports to make an appointment by will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed under this section.
(12) If a power is conferred on a person to make an appointment by will and the appointment must be executed in a particular way or with a particular solemnity, the person may make the appointment by a will that is executed under this section but is not executed in the particular way or with the particular solemnity.
(13)This section does not apply to a will made under an order under section 21.