Speak Directly To a Lawyer Now

1300 038 223
Open 7am - Midnight, 7 days
Or have our lawyers call you:
  • This field is for validation purposes and should be left unchanged.

Non-Binding Clauses Of A Will (WA)

A testator uses a will to leave instructions on the disposal of their estate after their death. Every part of a will is significant, so the testator must carefully draft the documents to ensure that each clause is valid and enforceable. However, some will clauses are not enforceable, no matter how carefully crafted. This article looks at examples of non-binding clauses of a will in Western Australia.

Non-Binding Clauses Of A Will: Guardianship Of Children

Testators with young children often include a clause in their will appointing someone to act as guardian in the event of their death. This is a particular concern for single parents with young children or special needs children. The parent needs to know that if they die unexpectedly, someone will immediately take care of their child. For these testators, the guardianship clause is often the most reassuring part of a will. In order to avoid having to regularly update their will, the testator should nominate a guardian who is likely to outlive the testator, such as a younger sibling or godparent of the child. As “testamentary guardian” this person will have certain powers, rights and responsibilities related to the child’s care and welfare and development.

However, this clause is non-binding in Western Australia because an appointed person does not have to accept guardianship of the child. To avoid this guardianship clause failing, a testator should discuss their intentions with the prospective guardian before writing their will. Testators should also nominate substitute guardians in case the primary nominee is unwilling or unable to act.

It is also essential to note that under the federal Family Law Act 1975, the Federal Circuit and Family Court has the ultimate power to appoint a guardian in the best interests of the child. If the court finds the testamentary guardian unsuitable, it can appoint someone else or even take the child into foster care, irrespective of the deceased parent’s wishes. In this sense, the guardianship clause is non-binding because it is seen as a wish rather than a binding legal instruction on the parties.

A testator must also be aware that while they can appoint a testamentary guardian, they cannot override standard family law provisions. When one parent dies, the surviving parent has full parental responsibility for the child. This is the case even if the parents are not currently in a relationship or if the testator wishes to transfer parental responsibility to someone else (such as a parent, sibling, or current partner). The testamentary guardian can apply to the court to share this parental responsibility. Still, the court will only exercise its discretion in this matter if it is in the best interests of the child. Otherwise, sole parental responsibility belongs to the surviving parent, and the deceased’s “share” of the parental responsibility extinguishes on their death.

Organ Donations

A testator may include a clause in their will specifying that they wish to be an organ donor. This is not the best approach, as the deadline for organ donation is usually over before anyone reviews the will. Anyone who wishes to be an organ donor in Western Australia should join the Australian Organ Donor Register, which replaces the state-based driver’s licence system.

Even if the will is on hand, the document itself does not authorise organ donation. The deceased’s next of kin makes the final decision and can override any instructions in a will or on the Register. For this reason, anyone who wishes to donate their organ should speak to their families about their wishes.

Non-Binding Clauses Of A Will: Funeral Arrangements

A will often includes a clause containing the testator’s preferred funeral arrangements. A testator might specify a particular type of funeral service or select flowers, casket and readings. Conversely, some testators take the opportunity to state that they do not wish to have a funeral service. In either case, these are non-binding instructions. The will’s executor has the ultimate authority to determine the funeral arrangements, regardless of whether they are consistent with the testator’s wishes.

No Contest Clauses

A testator will sometimes include a “no-contest” clause in a will in the hope of avoiding a Family Provision Claim. A no-contest clause typically states that anyone who contests the will forfeits their bequest. This type of clause is enforceable in some other countries but is non-binding in Western Australia. A no-contest clause does not invalidate the will, but the specific clause is unenforceable, as the right to claim is determined by statute.

A valid will is an unequivocal expression of a testator’s wishes for their deceased estate. With the help of an experienced legal professional, it is possible to draft a will so that every clause is enforceable. On the other hand, if the testator wants to include non-binding clauses in their will, a solicitor can help draft the testator’s wishes clearly and persuasively.  Armstrong Legal is here to help with any testamentary matter, including drafting, interpretation and enforcement. Please call 1300 038 223 or contact us for friendly and expert assistance.

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.

Legal Hotline
Open 7am - Midnight, 7 Days
Call 1300 038 223