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What kinds of formal wills are there?
September, 2010

Many people, for a range of reasons including remote living or illness, are unable to make a Formal Will. It must be noted that this can lead to issues around authenticity and proving intention. Informal Wills include:

A Holographic Will refers to a handwritten Will in the handwriting of the person who is making the Will, signed and dated in that person\'s own handwriting. It is often created without a witness. There is much debate about whether Holographic Wills provide legitimate verification of the Will maker’s intention. Argument against this type of document includes that they are often chatty or conversational in style and lack the deliberate ritual of an attested will.

Video-taped Wills are often seen as giving rise to less accuracy of expression. These types of Wills can become lengthy, thereby increasing the expense of reading the Will and the possibility of conflict over interpretation. However, making a video or film to accompany a written Will allows for more authenticity of deliberation and intention.

Oral Wills, sometimes, can be all that a relative has to testify to the intentions of the deceased person. This type of Will refers to what a person has spoken and is often unreliable, particularly if the person was ill at the end of their life or confused in any way. Oral Wills can cause a great deal of conflict in family situations. However, for a long time in many countries, this was the only type of Will available. Many countries now legislate for Wills to be written down and witnessed.

Informal Wills often lead to the Will being contested. A person can contest a Will on a variety of grounds, including that the testator was not of sound mind, or that they were unduly influenced or coerced by another person when they made the Will. The Will can also be contested if the person who has made it has failed to make adequate provision for a dependant.

If a person feels the need to contest a Will, it is advisable to consult a solicitor to understand their rights.


FAQ Archive:

My husband passed away a few months ago and he did not leave a will. Someone has asked who the executor of his estate should be, but nobody was named? What happens now?
August, 2010

There are rules laid down by law about how assets are to be distributed when there is no will. Briefly, a surviving spouse (this includes a domestic partner) receives the whole estate if there are no children or the children are those of the spouse....

My father had a will from a kit that he signed but there are no witnesses. He left everything to my dead sister and me. Is it valid and do my sister's children get her share?
July, 2010

The court does have power to recognise a will if the proper formalities have not been met. It must be satisfied that the document was intended to be a will, and represented his wishes....

My husband never told me he wanted to donate his organs and it wasn\'t in his will, so when asked, I said no. I later found out it was on his license; should I have said yes?
June, 2010

It is important that organ donation consent is registered on the Donor Register. It is the only national register for organ and tissue donation for transplantation after death....

My wife recently died and wanted to pay her debts from her super. We also had a life insurance policy; can I use this too to pay her debts?
May, 2010

Life insurance policy proceeds are not to be used for payment of estate debts except for funeral or testamentary expenses. Unless your wife specified in her will that she wished otherwise with a contrary intention, no monies from the life insurance policy may be used to cover her outstanding debts....

Are grandchildren eligible for a family provision order against a will or estate?
April, 2010

In order to obtain a family provision order, The Succession Act 2006 (NSW) requires that eligible grandchildren prove that at any particular time they were a dependent of the deceased person and a member of the deceased’s household, or that they are a person with whom the deceased person was living in a close personal relationship at the time of the their death....

I\'m thinking of appointing my daughter as my executor. What would this actually involve for her?
March, 2010

An executor is someone who looks after your estate and carries out your instructions when you die. It is not always an easy task and it is advisable to appoint someone who has a reasonable understanding of accounting, taxation issues and the law....

My mum has Alzheimers & doesn\'t have an Enduring Power or Guardianship Appointment, What can we do?
February, 2010

"My Mum is in the early stages of Alzheimers, and does not have either an Enduring Power or a Guardianship Appointment. She knows she should have them both....

I know that if I die without a will my estate goes to my children, which is what I want. Why should I bother with a will?
December, 2009

"I am a widower. I know that if I die without a will my estate goes to my children, which is what I want. Why should I bother with a will?"

You don\'t need one, but remember that getting Letters of Administration costs more than getting Probate and thus having a will prepared may be more cost effective in the long run....

Our children are in their 30\'s and have families of their own; do they need a Power of Attorney?
November, 2009

Although we think of dementia of the elderly as being the likely producer of a lack of mental capacity, it is not the only one. Alzheimers is not exclusively an illness of the elderly, and there are other illnesses which can lead to impairment of brain function....

My mum has dimentia and has appointed my brother as her guardian, what can I do?
October, 2009

“My brother got my Mum to appoint him as her guardian even though I have always been far more involved with her care. She is in the early stages of dementia and I don’t think she really understood what she was doing....

What types of things will my lawyer want to discuss with me in developing my will?
September, 2009
Wills can vary. It depends on a variety of factors including your age, family complexities, property and of course, your debt! Some of the things your lawyer will want to discuss with you may involve considering:
  • What jointly owned property and superannuation will have to be considered outside the will?
  • What other assets are owned by potential beneficiaries?
  • What provision needs to be made for a surviving partner?
  • Are there children (adult or young)?
  • Are there step-children, and will provision be made for them?
  • Is there a family trust, and if you are an effective controller of it, how will future management be passed on?
  • Who are suitable Executors?
  • Are testamentary trusts appropriate? (A testamentary trust is simply a trust established by a Will, and can have taxation and Centrelink advantages where the beneficiaries are under eighteen or are subject to a disability)....

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