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Non-Binding Clauses Of A Will (Vic)

A will is made up of clauses containing testamentary instruction, appointment and bequests. A testator should carefully draft each clause in a will so that the words serve the testator’s purpose. Many clauses in a will are binding on the executor and the beneficiaries. A will may also include several non-binding clauses. The testator can use a non-binding clause to communicate with their executor and beneficiaries, but the clause is legally unenforceable. This article looks at the implications in Victoria of standard non-binding clauses in a will.

Non-Binding Clauses Of A Will: Guardianship Of Children

A person is often prompted to make their first will because of the imminent birth of a child. Parents want to provide materially for their children and appoint someone to care for them if they pass away unexpectedly. A testator can include a binding clause in their will for the care and support of their child. However, the enforceability of a guardianship clause is more questionable.

A guardianship clause often specifies the testator’s instructions for the education, religious affiliation and care of their children. For instance, the will might say, “I wish my child to be brought up in the Jewish faith and attend the Leibler Yavneh College in Melbourne for the entirety of her schooling”. However, these instructions are no more than a guide, as the guardian is expected to make their own decisions in the child’s best interests.

In addition, it is important to know that a will is not capable of transferring a share of parental responsibility. Under the Family Law Act 1975 (Cth), if one of the child’s parents dies, the surviving parent takes full parental responsibility. This legal principle applies whether the parents were separated or even at odds. Absent a court order directing another party (such as the deceased’s parents, siblings or current spouse) to share parental responsibility, the remaining parent retains full responsibility for the child.

When there are no surviving parents, the testamentary guardian can take parental responsibility for the child. However, the appointed person has no legal obligation to follow this instruction. They may simply choose to decline the role. This is one reason a testator must discuss their intention with the prospective guardian before drafting their will. A potential guardian should be honest if they do not feel up the role of guardian, as it allows the testator to consider other options. A testator should also nominate a substitute guardian in case the primary nominee is unwilling or unable to act when the time comes.

Legally, the best interests of the child are always the primary consideration, over and above the wishes of the deceased and the guardian. If the testamentary guardian is considered unsuitable, the Federal Circuit and Family Court of Australia may intercede and appoint another party as guardian or take the child into foster care.

Non-Binding Clauses Of A Will: Organ Donations

Testators sometimes include a clause in their will expressing their wishes about organ donation. This is not the best way to record donation preference, as organ harvesting is time-sensitive, and the family will typically not read the will immediately. Previously, a person could register their preference on their driver’s licence; however, this is no longer a valid way to nominate for organ donation. Any person wishing to be an organ donor in Victoria should list their name on the Australian Organ Donor Register. The testator should also inform their family of their wishes as their next of kin actually makes the final decision on organ donation.

Funeral And Burial Arrangements

Another non-binding clause that testators often include in their wills relates to funeral arrangements. A testator might state that they want a full-service funeral held in a chapel followed by burial in a prebooked cemetery plot. In fact, it is not the deceased nor even the family who has the final say over funeral arrangements. Under Victorian law, the executor can make any arrangements they consider appropriate, considering the funds available to pay funeral expenses. The executor has complete control over the funeral arrangements and decides the location and style of the funeral and even the guestlist. The deceased’s family has no legal standing to challenge these arrangements.

Most testators include one or more non-binding clauses in their wills. Often the testator is unaware that these clauses are unenforceable. The friendly and experienced solicitors at Armstrong Legal can help you to draft your will and advise you on non-binding clauses. If you are an executor, the team can help you understand which clauses you must strictly follow. The contested wills team can also assist if you need advice or representation because of a will dispute or other probate or succession issue. Please do not hesitate to call 1300 038 223 or contact us for legal advice.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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