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Australia - Wills

Anyone who is aged 18 years and over can make a will, although in some states it may be possible to make a will at a younger age. This is normally the case if a person has married or if they have the permission of the courts. In order to make a will in Australia you must have what is known as ‘testamentary capacity’. This means that the person making the will knows the assets that they have and have a rough guess at their value so that they can make an informed decision about who they should be left to. You need to be able to show that you can make a fair decision about your beneficiaries and demonstrate that you understand that your family make take priority over others. If there is any doubt about the mental capacity of the person making a will they will need to have a doctor make an assessment and ensure that the results of this are kept with the will.

There are a number of different things that can be included in an Australian will. These include property such as houses, money, cars and antiques. The will can also detail who can be appointed as trustees and who the executor should be. There are some items which cannot be included in a will such as life insurance and superannuation. These usually have a nominated person on the policy who will receive the assets in the event of the death of the policy holder.

You are only able to list the house as part of your property if it is in your name only. If the name of another person is listed on the deeds then there are different regulations. As a joint owner you can be considered to be a ‘joint proprietor’ or a ‘tenant in common’. If you are a joint proprietor then you both own the house and your half will automatically pass to the other owner in the event of your death. If you are a ‘tenant in common’ it means that you only own a percentage of the property and you are able to pass this to someone other than your partner if you should die. If you are listed as a ‘joint proprietor’ then you can opt to have this changed if you want to leave your share to someone other than your partner.

There are no restrictions as to who you can leave your property to. It is possible to leave items and monies to charities and other non-profit organisations. When you leave your property to a person who is under the age of 18 it will have to be held in trust until they come of age. It should also be noted that if you leave any debts these will also be passed on to your beneficiaries. Those to whom you owe money will be able to make a claim on your estate if they can prove that you owe the money. If you make it clear in your will that you owe the money and that it is to be paid out of your assets before the estate is to be divided up.

It is not essential to have a will drawn up by a lawyer and you can simply handwrite your wishes if you prefer. There are a number of regulations which need to be met though. A will is only acceptable if it is in writing. Wishes that have been transmitted verbally are not legally binding. The will must be signed and if the document is long it will need to be signed at the bottom of each page. The will must be witnessed by two people who are not mentioned in the will.

Even if there are errors in the formalities with the will it may still be verified by the courts if they are happy that it represents the true wishes of the deceased. You can easily write the will yourself but it is always a good idea to have it checked by a lawyer. There are a number of reasons why using a lawyer to prepare your will is better, for example if you have a large family and want to divide your assets among them all.

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