Wills

The 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 share for that child’s education or benefit (s 37 Trustee Act 1958 (Vic)).

A guardianship clause should be inserted (see clause (4) in ‘A model will’) 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 should be a person who is likely to outlive the willmaker (e.g. not the parents of the willmaker). 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 Federal Circuit and Family Court of Australia 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.