Last will and testament: what a will is and what it does

What does "last will and testament" mean?

It means your will. "Will" and "testament" are an old legal pairing of an English word and a Latin one that mean much the same thing. Lawyers once liked to say things twice to be safe, and the phrase stuck.

"Last" refers to the fact that only your latest valid will counts. A new will normally starts by revoking every earlier one, and the law in every state recognises that (for example, Succession Act 2006 (NSW) s 11).

Nothing in Australian law requires those words on the front. A document headed "Will of Jane Smith" works exactly the same as one headed "Last Will and Testament of Jane Smith". Willies uses the plain heading for that reason.

What is a will?

A will is a legal document that takes effect when you die. Until then you can change it or replace it as often as you like, and it gives nobody any rights to your property while you're alive.

To be valid in Australia, a will must be in writing, signed by you with the intention that it be your will, and signed in front of two witnesses who are present at the same time and who then sign it too. Each state sets this out in its own law, such as Succession Act 2006 (NSW) s 6, Wills Act 1997 (Vic) s 7 and Succession Act 1981 (Qld) s 10. You also need to be old enough, usually 18, and to understand what you're signing.

What does a will do?

• Appoints your executor. The person or people who collect your assets, pay your debts and hand out what's left. See what an executor does.
• Leaves the rest of your estate. The residue, meaning everything not given away separately, usually to a partner, children or others in shares.
• Gives specific gifts. A sum of money, a car, a piece of jewellery, or a gift to a charity.
• Names backups. Who inherits if someone you've chosen dies before you.
• Appoints guardians. Who you'd like to care for your children under 18 if neither parent can. See guardians for children.
• Protects young or vulnerable beneficiaries. It can hold a child's inheritance until a set age, or set up a testamentary trust or a special disability trust.
• Records your wishes. Funeral wishes, organ donation and similar, which guide your executor but don't bind them.

What can't a will cover?

A will only deals with property you own in your own name when you die. Some of the most valuable things people have pass another way:

• Superannuation. Your fund pays your super under its own rules and any nomination you've made, and it often doesn't form part of your estate. See binding death benefit nominations.
• Property owned as joint tenants. A home or bank account you own as joint tenants passes automatically to the surviving owner. A share you own as tenants in common does go through your will.
• Assets of a family trust or company. The trust or company owns them, not you. Your will can deal with your shares, and some control roles, but not the assets themselves.
• Life insurance with a nominated beneficiary. Cover held inside super is paid by the fund, and a policy with a nominated beneficiary is paid to that person.

A will also can't stop an eligible person from asking a court for a bigger share. Every state has family provision laws (in NSW, Chapter 3 of the Succession Act 2006) that let certain family members and dependants claim if they weren't adequately provided for. See contesting a will.

Who needs a will?

Anyone over 18 who has anything they care about, or anyone who depends on them. Without a will, a formula in your state's law decides who inherits, and nobody gets to choose a guardian for your children. See what happens if you die without a will.

A will matters most if you:

• have children under 18
• live with a partner, married or not, or have separated but not divorced
• have a blended family or stepchildren you want to provide for
• own a home, a business, shares or crypto
• want to leave something to a friend or a charity, who get nothing under the intestacy rules

What are the parts of a typical Australian will?

Wills vary, but most follow the same order:

1. Heading and opening. Your full name and address, and a statement that this is your will.
2. Revocation. A clause cancelling all your earlier wills.
3. Executors. Who's in charge, with a backup in case your first choice can't act.
4. Guardians. For your children under 18, if you have any.
5. Specific gifts. Particular items or sums of money, each with a backup.
6. The rest of your estate. Who gets everything else, in what shares, and who takes a share if someone dies before you.
7. Gifts to young beneficiaries. The age a child or grandchild inherits at, and what the executor can do with the money until then.
8. Trusts. A testamentary trust or special disability trust, if you want one.
9. Wishes. Funeral and similar wishes, marked as not binding.
10. Signing page. Your signature and those of your two witnesses, usually with a clause recording that you all signed together.

A clause recording the signing isn't strictly required (for example, Succession Act 2006 (NSW) s 6(3)), but it helps your executor prove the will was signed properly. For the steps in order, see how to make a will.

When does a will stop being your "last" will?

• You make a new one. A new will that revokes earlier wills replaces them.
• You marry. Marriage generally revokes an existing will, with exceptions such as a will made in contemplation of that marriage (for example, Succession Act 2006 (NSW) s 12).
• You divorce. Divorce revokes gifts to your former spouse, and their appointment as executor, unless the will says otherwise (for example, Succession Act 2006 (NSW) s 13). In Western Australia, divorce revokes the whole will unless the will shows otherwise (Wills Act 1970 (WA) s 14A).
• You destroy it intending to revoke it (for example, Succession Act 2006 (NSW) s 11).

Small changes can be made with a codicil, which must be signed and witnessed like a will. For anything bigger, a fresh will is cleaner.