• Hawkes Lawyers

Wills: Everything you need to know

Securing estates can be daunting for many people, with complex language and strict legal requirements. We're here to simplify the process, and ensure that when you die your wishes are protected.

Having a clear, legally valid and up-to-date Will is the best way to help ensure that your assets are protected and distributed according to your wishes.


What is a Will?

A Will is a legal document that states your wishes for what you want to happen to your estate (assets/property) after your death, and meets all the legal requirements to be legally enforceable.


What are other important documents?

Important documents to secure your estate and ensure your wishes are met include:

  • Will

  • Advanced Health Directive

  • Enduring Power of Attorney


Common Terms

  • Testator: the person whose Will it is. This person executes (signs) the Will.

  • Executor: person, or people, named to administer the estate

  • Beneficiary: anyone receiving a gift (money or otherwise) from the estate

  • Trustee: a person who has a duty to ensure the rights of beneficiaries are upheld

  • Probate: the legal process where a Will is proved in a court of law to be valid


What if I die without a Will?

When someone dies without a valid Will, this is know as dying intestate. No-one knows who you wanted as your beneficiaries or who you wanted as your executor.

Despite what you may have wished, your estate is distributed according to a pre-determined formula with specific family members receiving a percentage of your assets

Dying intestate can result in your surviving loved ones suffering unnecessary financial hardship, time and emotional stress.

In some circumstances, the next of kin (often a spouse or child) can take on the role of administering your estate. However, this cannot be done until they receive a grant of letters of administration. This can be a complex and lengthy process.

Learn more about letters of administration here.


Can I prepare my own Will?

The precise wording of a Will is a specialised and important legal task.

The ordinary meaning of words is not necessarily the same as their legal meaning. Ambiguous wording is extremely common in home-made Wills and may result in substantial cost and delay in having the Supreme Court resolve the ambiguity. Therefore, preparing a your own Will is not advisable.

Anyone who is not legally qualified risks making a mistake, creating uncertainty or losing opportunities for good estate planning.


When should I update my Will?

Your Will expresses your wishes at a particular point in time. It is advisable to regularly review your Will as your circumstances change so that it accurately reflects your current wishes.

Situations where you may want to update your Will include:

  • New people need to be named in your Will

  • A person in the Will has died or become ill

  • Divorce or separation

  • Marriage or Defacto yourself or your children

  • Your wishes have changed

  • Changes to your assets

  • Personal details have changed

  • A named dependent comes of age

  • Illness or medical changes.

We recommend that you review your Will every five years or whenever you have significant changes to your circumstances such as those outlined above.


What are Mutual Wills?

Mutual Wills are Wills that form a legally binding contract between two individuals.

  • Both Wills are drafted with terms that are agreed by both parties

  • Prohibits either party from revoking or amending their Will without the agreement of the other.

Mutual Wills are commonly used between spouses who have remarried and have children from a former marriage.

A mutual Will guarantees that assets go to the intended and agreed beneficiaries. This also means that a surviving spouse cannot disinherit their step-children following the death of the first spouse.


Have any Questions?

If you have any questions, or want to book an appointment to secure your estate, contact us today.

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