A Will is a written document that sets out how the Willmaker wants his/her estate (assets and personal property) distributed after their death

Right to revoke and regular review

A will should be reviewed regularly. It should also be pointed out that, subject to having testamentary capacity and to any contractual obligation to leave property by will, the testator may revoke the will at any time and that the will does not represent a commitment to the scheme of distribution contained in it.

Revocation by marriage; revocation by divorce

A subsequent marriage will revoke the will, unless the will falls within the statutory exception of a will made in contemplation of marriage. Dissolution of marriage brings about a revocation, or part or qualified revocation, of the will in New South Wales, Victoria, Queensland, Tasmania, the Northern Territory and the ACT.

Pressure by one person on another

Unfortunately it is not uncommon for one person to exert pressure on another person to make a will in his or her favour, for example in the case of spouses. It should be made clear to the clients that, unless mutual wills have been made, the testator is free at any time to make a new will in completely different terms without consulting or informing any other person including spouses and beneficiaries. The testator should be encouraged to give or confirm instructions in the absence of any person who is a major beneficiary of the testator.

What you need to consider:

1. Do you have an existing will?

2. What are your assets?

(1) Land: If you wish to give specifically mortgaged or charged property, how are the debts to be borne?

Where are the title deeds?

Have you entered into any contract to buy or sell land, given or taken an option of purchase, and is the land being resumed?

(2) Other assets: Particulars of investments and personal assets. If shares in a private company are a major asset, it may be necessary to examine the memorandum and articles of association. On `carrying on the testator's business'.

(3) Do assets really belong to the testator? Ownership of assets should be checked, especially if specifically bequeathed. `My' assets may be partnership, company or trust assets.12 Are assets jointly owned? if the testator dies first the assets will not form part of the testator's estate and will not be effectively disposed of by the testator's will. (4) Power of appointment: Does the testator have any power of appointment to exercise?

(5) Debts: ascertain liabilities accurately;

due to the testator - are any to be forgiven?

due by the testator - special fund for payment of debts?

(6) Superannuation and insurance: The testator may have nominated a beneficiary who will or may succeed to these assets and they will not form part of the testator's estate on death. Particulars need to be obtained concerning these assets.

Sometimes much of this information is unnecessary especially if the will is simple and contains no specific bequests. However, the testator's affairs may be in a disorganised state which will create hardship and difficulty for him or her and the family during life, and to the executors and beneficiaries on death. Sufficient information should be gained from the intending testator to make preliminary suggestions to the client.

(7) Foreign assets: Where the testator has assets in a foreign country, as well as an Australian jurisdiction, the efficacy of the will in that country will depend on its law. The Hague Convention of 5th October 1961 has been enacted in Australian jurisdictions15 and, under this legislation, a will is to be treated as formally valid if its execution conformed to the internal law in force in the place where it was executed, or in the place where, at the time of its execution or of the testator's death, he or she was domiciled or had his or her habitual residence, or in a country of which, at either of those times, he or she was a national. It should be ascertained whether the Hague Convention or some other law applies in the foreign country in which the testator's assets are located and whether there is any substantive law in the foreign country which might prevent the will from effectively disposing of the testator's foreign assets, especially land or other immovables, in accordance with his or her wishes.

It may be advisable to have separate wills for each country in which the testator has assets. Administrative difficulties can arise where the original will is held in one country and there are assets in another. The need for separate wills has, in practice, been obviated, to some extent, by the use of inter vivos trusts and family companies. Pr 20.135 is a form of appointment of executors in respect of foreign assets in a particular jurisdiction. Pr 20.278 contains the basic provisions for wills which can be used where it is proposed to have a separate will for assets in a particular foreign jurisdiction and for other assets.

A will which is intended to operate in a foreign country must be formally valid and its provisions must be compatible with the law of the foreign country. The law of the foreign country might differ from our own in respect of the following:

(a) the law of a foreign country may provide that the spouse or the children of the testator take a minimum fixed share of the estate, and that this cannot be reduced by will;

(b) guardianship arrangements for minor children will almost certainly differ from ours;

(c) the law of trusts may be different in the foreign country or not exist;

(d) the identity and role of the executor may differ from those in Australian jurisdictions; and

(e) the taxation laws are likely to be different from our own.

It may be necessary to seek advice from a law firm which practises in the foreign jurisdiction or from a local lawyer with knowledge of the law in that foreign jurisdiction.

4. Who are going to be beneficiaries, guardians, executors?

(1) Family: The solicitor should ascertain the precise relationship (for example, child, foster child, adopted child, step-child or exnuptial child, whether of the testator or of the testator's child or brother or sister) of persons described by the testator as children. For example, the testator may use the word `children' to include foster children or step-children who will be excluded if the will itself simply benefits the testator's `children'. Words like `parents', `grandchildren', `sisters' and `brothers' may also bear unusual meanings for the testator.

The legal position and their rights under family provision legislation should be explained to the testator. Those persons may be:

* former spouse;

* illegitimate children;

* legally adopted children;

* foster children;

* step-children;

* children of a de facto spouse.

* a person for whom the deceased had responsibility to make provision.

If the testator has any mentally incapable, financially unstable or drug or alcohol-dependent beneficiary, the solicitor may suggest a protective or discretionary trust.

(2) Minor children: care, control and guardianship: The distinction between guardianship of a minor on the one hand and the care and custody of the minor on the other should be borne in mind. If the guardian takes care and custody, and control, of the children as part of the guardianship, the latter becomes a major task, both socially and financially. The appointment should not become a hindrance to the family's efforts to find a suitable home for the orphaned children. The children or the appointed guardian may be unwilling to fall in with the arrangement. Teenage children may have strong views which have to be respected. Even where the children are very young when the will is made the appointment may prove unsatisfactory if the children are teenagers when the will comes into force.

- Financial provision for whoever will have care and control of the minor children should be made, even if no guardian is appointed.

The question whether to appoint a guardian, whom to appoint as guardian and executor, requires careful consideration.

(3) Unborn children: the testator who may have or get children should be advised to provide for them, even if there are no children when the will is made.

(4) Doctors as beneficiaries: Patients should beware of making their medical practitioners substantial beneficiaries. There may be a suspicion of undue influence - or even that the medical practitioner may have `eased the passage' to get the benefit.

(5) Names and addresses: The precise names and addresses for all named beneficiaries, executors and other persons mentioned in the will should be obtained. (6) Ultimate beneficiaries: Who is going to take in the unlikely event of all family members predeceasing the testator? The testator may decide on a charity.

(7) Choice of executors: Who are the best persons to choose for executors?

5. Contemplation of marriage?

Does the testator intend to marry? De facto spouses who have no present intention to marry may well marry each other at a later stage. They should be warned of revocation by marriage and the use of a contemplation of marriage form should be suggested to them.

6. Powers of appointment

Has the testator any powers of appointment exercisable by will, general or special? The instruments creating such powers must be perused to see what property is subject to the power, and, in the case of special powers, who the objects are. The testator should be asked whether previous appointments by will or by revocable deed have been made, and whether any such appointments are to be confirmed or revoked. Where a power of appointment is to be exercised, care must be taken to bring the exercise of power within the scope of the authority granted by the will or other instrument which created the power.

7. Contract to leave property by will?

Is the testator bound by any obligation to leave particular property by will, or to make the will in any particular form? Although such contracts are not common, they are binding. They are likely to arise where the testator's marriage is under stress or has been dissolved.

A common provision in agreements which settle property disputes between ex-husband and ex-wife is a provision requiring one or sometimes both to execute a covenant binding upon his/her estate that he/she will by his/her last testamentary disposition confer some specific benefit upon the children of the marriage.