Creating a Will is a crucial step in ensuring your assets are distributed according to your wishes after you pass away. However, there are certain matters that cannot be included in an Australian Will.
Understanding these restrictions is essential to prevent legal complications and ensure your wishes are carried out effectively and validly.
We list below some matters which may not be included within a valid Will. The LifeDocs Will has been prepared having regard to these matters.
- Property held in Joint Tenancy: If you own property as a joint tenant, you cannot bequeath your share of the property in your will. Joint tenancy means that upon your death, the property automatically passes to the surviving co-owner(s). Instead, you can only bequeath your share of the property if it’s held as tenants in common.
- Superannuation: Superannuation, or retirement savings, generally does not form part of your estate and therefore does not necessarily go to the beneficiaries according to your Will. Superannuation money is generally held on trust by super funds, whose trustees decide where it should go. To direct how your superannuation is distributed upon your death, you should complete a binding death benefit nomination form with your superannuation fund. It’s important to keep this nomination up to date and aligned with your wishes. Similarly, depending on whether it is held within a super fund or outside it, and whether you have nominated beneficiaries, life insurance may also not form part of your estate.
- Assets held in a Trust: Assets held in a trust are not usually included in your Will. Trusts operate under separate legal structures and have their own rules for asset distribution. If you wish to distribute assets from a trust, you should specify this in the Trust Deed or provide instructions to the Trustee.
- Family provision claims: While you may explicitly exclude a family member as a beneficiary your Will, you should be aware that they may still have the option to make a Family Provision Claim. In some circumstances, a Court may decide to override your Will to provide for eligible dependents or claimants. The States differ slightly on whom they define as an eligible person (and on the limitation periods) but generally it includes spouses, children and, in certain cases, other dependants, stepchildren and former spouses.
- Unidentified Beneficiaries: To ensure the validity of your Will, it is vital to identify your beneficiaries clearly. Vague or unspecified beneficiaries may lead to disputes or even challenges to your Will’s validity. You should name beneficiaries as best as possible.
- Revocation of previous Wills: It is crucial to be aware that a new will revokes any previous wills automatically, unless the new will explicitly states otherwise. You cannot use your will to stipulate that prior wills should still apply in part.
- Specific funeral arrangements: While you can express your wishes for your funeral in your Will, it’s not legally binding on the Executor to carry out such wishes. It’s often better to discuss these matters with your loved ones and specify your preferences in a separate document or to a trusted Executor.
- Illegal or immoral conditions: In Australia, it is unlawful to include any clauses or conditions in your Will that promote illegal activities or go against public policy. For example, you cannot use your Will to instruct someone to commit a crime, engage in unethical activities, or engage in behaviour that is morally or socially unacceptable.
Creating a valid Will in Australia requires an understanding of the limitations imposed by the law. Certain matters cannot be included in your will, such as assets held in specific ways, and provisions for superannuation or trusts.
To ensure your will accurately reflects your wishes, we recommend that you keep your Will up to date and ensure it aligns with your current circumstances and intentions. This will minimise potential disputes and complications at a later stage.
