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What goes in a Will?

What information is included in a typical Will.

A typical Will contains the following clauses:

  • personal details of person making the Will
  • appointment of executors—see Executors
  • appointment of trustees—see Trusts and trustees
  • legacies, bequests, and gifts (what is given and to whom)
  • how the residue of the estate is to be distributed (what is to be done with anything left over)
  • testimonium and attestation (dated and signed at bottom by Will-maker and 2 witnesses)
  • revocation of any past Wills.

In addition to statements about how property is to be distributed, people often add the following special clauses to their Wills.

Also see Life interests.

Guardianship of orphaned children

A guardianship clause is one that states who the Will-maker would like to take on responsibility of caring for orphaned children younger than 18 years or who have a disability.

The Will-maker should discuss this with the intended guardians and also older children before making the Will. The Will-maker also needs to consider the associated expenses that must be incurred by the guardians in raising the children. Provision should be made for this in the Will.

Disputes about the care of children

If there is a dispute about care of children between the guardian(s) and family members, the matter will need to be settled by the Family Court. The court will consider the best interests of the child as paramount consideration. For this reason, parental wishes as stated in their Wills may not be followed.

See Children and parenting—Best interests of the child.

Funeral arrangements

Will-makers often include instructions about how they want their funeral to be arranged. However, trustees have no ownership over the body and have no legal obligation to carry out this request.

Organ donation

Under Human Tissue Act 1982 (Vic), a person can consent to donating their body tissue after death in writing. Including this in their Will fulfils the legal requirement. They can also register as an organ donor when they renew their licence with VicRoads.
If the deceased has made no mention of consent to tissue donation, the senior available next of kin may consent to the removal.

The coroner also has power to access bodily organs if this is necessary to determine the cause of death.

See s. 26—Human Tissue Act 1982 (Vic)(opens in a new window).

Gifts to charity

Care must be taken to clearly identify the organisation that is to benefit from a Will. If the organisation is not incorporated, the gift must be made to a person in trust for that organisation.

If an organisation is deemed not to be a charity, the trust may not be permitted to continue beyond 80 years.

Many charitable organisations provide information and offer assistance to potential benefactors. Some may offer free Will-making services or provide suggestions for wording of the Will clause to benefit their organisation.

The Australian Tax Office (ATO) provides useful guidelines about what constitutes a charity for tax purposes. This may provide a useful guide.

See ATO—Getting endorsed(opens in a new window).

More information

Legislation

Wills Act 1997 (Vic)

  • s. 47—dispositions to unincorporated associations of persons that are not charities

See Wills Act 1997 (Vic)(opens in a new window).

Charities Act 1978 (Vic)

  • Part 1—governs when it is permissible to substitute one charity with another
  • Part 2—deals with the supervision of charities

See Charities Act 1978 (Vic)(opens in a new window).

Family Law Act 1975 (Cth)

  • s. 43(c)—principles to be applied by Family Court and the need to protect the rights of children and to promote their welfare
  • s. 60D—defines guardian
  • Div 5 ss. 64B and 64C—parenting orders

See Family Law Act 1975 (Cth)(opens in a new window).

Human Tissue Act 1982 (Vic)

  • s. 3—senior next of kin defined
  • s. 26—authority to remove tissue after death
  • s. 27—consent by coroner for purpose of investigation of death
  • s. 32—removal of body parts for purpose of anatomical examination for teaching purposes

See Human Tissue Act 1982 (Vic)(opens in a new window).

Perpetuities and Accumulations Act 1968 (Vic)

  • s. 5—power to specify perpetuity period but not to exceed eighty years
  • s. 18—non-charitable purpose trusts

See Perpetuities and Accumulations Act 1968 (Vic)(opens in a new window).

References

Lawyers Practice Manual

Westlaw's Lawyers Practice Manual has the following sample Wills:

Note: These resources are only available to staff at Victoria Legal Aid.

Updated