Our team will ensure that you receive appropriate advice, take into consideration matters that are relevant for you and ensure that your will operates in the manner you request.

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李银瑛

李银瑛

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遗嘱与遗产规划

Preparing will

Q: The doctor stated that it was cancer. It is not progressive and I will not die soon however, I would like to take this opportunity to leave a will. Please advise on what I need to be aware of when drafting a will. A: As Australian laws on wills vary in each state, a brief description will be provided in relation to the NSW Succession Act 2006 (NSW). There are many things that need to be taken into consideration when drafting a will. First of all, it is a basic clause, in my experience, if the inheritance is divided equally among family members (e.g. if the heir dies, all the inheritance will go to the heir’s spouse and if at that point, the spouse passes away, the asses will be distributed equally to the children), there is a very low chance that a dispute will arise. In that kind of situation, I do not think problems will arise with a simple will as this. However, special consideration must be given if preferential treatment is given to certain heirs.  Additionally, the assets may not be distributed according to the will. If it is determined that the testator does not have legal ability due to conditions such as dementia or mental illness or the testator is determined to have been unduly affected when preparing the will, the will in itself will become invalid. Furthermore, spouses and children are to some extent protected by the law regardless of what contents of the will.   In order to avoid disputes regarding the will, it is most desirable to use the legally required format and signature method. In other words, “the will must be in writing and signed by the testator and at least two witnesses”. However, even if the will does not meet these requirements, the court may still recognise its validity. In some cases, wills written on a iPhone app is considered valid and other cases such as a video recording of a will saved onto a DVD can also be considered valid. However, it costs money and time for the court to recognise the validity of a will that has not met the requirements mentioned above. It is best for it to be in written format.   Additionally, if assets also exist outside of Australia such as Japan, as far as I know, in accordance with Japanese law, wills that are recognised in Australia will be recognised in Japan however, the procedure is still complicated so wills should also be drafted in Japan. You must ensure that the two wills do not contradict each other and are consistent.   Recently, a will preparation kit is commercially available however, it is still best consult a lawyer so that your intentions are directly reflected in the will.