An example of a will
The following example of a model will gives examples of some of the things a willmaker might like to put in a will. It is only a guide. Care should be taken when using it. For instance, if a willmaker intends to leave everything to one person, the first three clauses are all that is needed.
A ‘testamentary disposition’ is a gift that takes effect on death. Most such gifts are made in wills. This phrase is needed to cover those that aren’t. A ‘testamentary expense’ refers to such things as the cost of the funeral and obtaining probate.
A willmaker should also be aware that the law implies a lot of things into wills. For instance, if a person leaves money to children, the children will not normally get the money until they turn 18. However, the law allows the executor to spend part of a child’s money for that child’s education or benefit (Trustee Act 1958 (Vic) s 37(1)(a)).
A guardianship clause should be inserted (see clause 4 in ‘Model will’, below) where the willmaker wishes their child or children under the age of 18 years to be looked after by a particular person or people if the willmaker dies. It gives the person appointed legal control over children until a court decides otherwise (which would only happen if someone challenges the arrangement). In the event of a challenge the Family Court may override the provision of the will as to guardianship of an infant child. It should also be noted that the court has no power to force guardians appointed under a will to act as guardians.
Model Will
THIS IS THE LAST WILL OF (insert your name) of (insert your address)
1. I REVOKE all wills and other testamentary dispositions that I have previously made.
2. I APPOINT (insert executor’s name and address) and if he/she predeceases me or, having survived me, refuses or is unable to act, I appoint (insert executor’s name and address) to be the executor and trustee of this will.
3. I GIVE everything I own, wherever such assets may be, to (insert name and address) absolutely provided that
he/she survives me by 30 days.
OR (if you want to give different things to different people)
3. Before distributing the gifts listed below, I direct my executor to pay all my debts, funeral and testamentary expenses, and all government duties that might be payable as a result of my death.
a. I GIVE (insert gift) to (name and address) provided he/she survives me by 30 days. (Repeat for each specific gift.)
b. I GIVE everything else that I own, wherever any such assets may be, to (insert name and address) provided
he/she survives me by 30 days.
OR I GIVE everything else I own, wherever any such assets may be, to those of my children who survive me by 30 days and who reach the age of 18 years and, if more than one, as tenants in common in equal shares.
4. I APPOINT (insert name and address) to be the guardian of my child(ren) until they reach 18 years of age.
DATED (insert date will signed)
SIGNED by the willmaker in the presence of us both (both of us being present at the same time)
_______________________________
signature of first witness
_______________________________
signature of second witness
(Each witness should provide their name, address and occupation next to their signature, and use the same pen as the willmaker when signing the will.)
Note: This is an example of a simple will only. Professional assistance should be obtained before you prepare your own Will.
An example of a will
Chapter: 9.3: Wills
Contributor: Justin Rizzi, Barrister
Current as of: 1 September 2024
Law Handbook Page: 811
Next Section: Having a will drawn up
