Preparing a will

Yukio Hayashi    24 Jun 2018

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. What do I need to be aware of when drafting a will.

A: As Australian laws on wills vary by 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, in my experience, if the inheritance is divided equally among family members, there is a very low chance that a dispute will arise. 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 the 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 an iPhone app are considered valid and in other cases a video recording of a will 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 in 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 has been made commercially available. However, it is still best to consult a lawyer so that your intentions are accurately reflected in the will.

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Yukio Hayashi

Yukio Hayashi

Senior Partner