Let’s talk about Wills

Wills are far from the sexiest or most lucrative topic of law out there, but you’d struggle to find a single lawyer who argues that you shouldn’t get one executed. Why is this? Well, to be blunt, we’re all going to die one day. And dying without a will (intestate) can be a risky thing, particularly when you have specific ideas as to how you want your property and assets to be divided up.

Yet, a 2015 joint study by the University of Queensland, Queensland University of Technology, and Victoria University found that only 59% of Australians either have a will or expect to make one. Further, a portion of those Australians drafted their will some time ago, meaning that not all of these wills still reflect their drafter’s current intentions or circumstances. The result is that a large portion of Australians either don’t have a will or don’t have a will that’s fit for purpose.

Given this situation, we’ve decided to put together a comprehensive list of the reasons why you should have a will, even if you don’t intend on using it anytime soon.


1. Freedom of Choice

When you draft a will, you put in writing what you want to happen to you and all of your property when you die. This can be as complex or simple as you would like but does, in most cases, at least outline:

  • Your executor – you determine who will administer your estate and assets after your death. It’s important to choose a person who you would feel comfortable having complete control over all of your property and dispersing it in accordance with your wishes.
  • Your beneficiaries – you determine who will receive your property on your death and how your estate will be split between those you care about. A will gives you great flexibility here as it allows you to gift (or block from gifting) anyone you want, including charities and unrelated friends.
  • Who will care for your children (<18 years old) – a will allows you to appoint a guardian to take care of any of your children who happen to be minors upon your death. Without a will, this will be left with the courts and they may end up choosing an individual or institution that you wouldn’t have agreed with.
  • What will happen to your body – there is a lot of focus on the economics of getting a will, but a will can also outline how you would like to be dealt with on your passing.

Without a will, each of these points becomes contentious. Some areas are dealt with under the provisions of a raft of legislation, principal among which is the Succession Act 1981 (Qld). For example, the terms of the Succession Act dictate that if you die intestate, your entire estate passes first to your current spouse. This provides some certainty, but if you had intended to split your property or gift some of it to a person or organisation not directly related to you then, without a will, you’re fresh out of luck.

These pieces of legislation also don’t deal with everything in a finite fashion and there may remain contentious areas that could impact the value of your estate in the long-run.

2. Economics

Except in the most complicated of circumstances, drafting a will and keeping it up to date is a relatively cheap, quick, and painless process. Similarly, administering an up to date will is, in almost all cases, a relatively straightforward and inexpensive experience for those you leave behind.

Comparatively, every stage of the process of administering your estate is more costly without a will. Applying for Letters of Administration is a more drawn-out process than applying for a Grant of Probate and lawyer’s fees can begin to mount up.

All of this expenditure doesn’t even consider the effects of a contested administration. Failing to execute a will can result in a far higher likelihood of your estate being contested. The administration of your property, the identity of your executor, and who will look after your kids can all be contested in the courts. This draws-out the process further but will also serve to drain the value of your estate for your loved ones, as the legal costs of successful parties will be paid out of your estate.

3. Burden on loved ones

The burden of a death on loved ones is significant in any circumstance. Having a will streamlines the process of administering your estate and makes your departing wishes clear. By executing a will, you ensure that your family and those you care about are not having to manage a complex legal process in your absence./span>

When you should update your will

Certain life changes can make the current terms of your existing will outdated, or even invalid. Here are some important life moments that may also require a re-drafting of your will:

  • A major lifestyle or relationship change – a significant change to your lifestyle or your relationship status can have an effect on your will. For example, under the provisions of the Succession Act 1981 (Qld), a recent marriage invalidates the terms of any existing will.
  • Welcoming your first child – without children, your existing will won’t have made provision for what happens to minors in your care on your death. An update to your will ensures that your child will be cared-for in accordance with your wishes.
  • Acquiring any new property – this is particularly important for large property acquisitions, like the purchase of a home. Properties can impact (or not impact) your will in any number of ways, so it is important to consult a legal professional about the effects that a new piece of property will have on your existing will.

It should be noted that these are just indicating factors. If there is ever any major change in your life, be it personal, emotional or geographical, it is important to consult a lawyer to determine the effects of that change on your will.