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Five Essential Clauses Of A Will

A testator can include many different types of clauses in their last will and testament. A testator can use special clauses for a variety of purposes, from the creation of a charitable trust to special provision for the care of a beloved pet. There are a few “essential” clauses that a will must have to ensure that it is valid and binding. This article outlines the five essential clauses that a testator should include in his or her will.

  1. Revocation Of Previous Wills

A professionally drafted will invariably has an express revocation clause to revoke all previously executed wills and codicils. This clause acts to prevent the testator’s previous testamentary instructions from having legal effect. It is best practice to have one current (and regularly updated) will rather than multiple documents that can be confusing and contradictory.

There is a general assumption that making a new will revokes any previous will. This is not altogether true, as a later will that does not have a revocation clause only acts to revoke those clauses that are incompatible with the previous document. For example, a testator may have a comprehensive will and then makes a new will that only refers to some of their assets. In this event, the new will is only binding on the named assets, and the executor will have to refer to the instructions in the old will to “fill in the gaps”. Even a testator who has never made a will before should include a revocation clause because then the executor of the estate will know that the document is the sole testamentary document.

  1. Appointment of Executors

A will needs to include a clause appointing one or more executors to carry out the wishes expressed in the will. It is highly recommended that the testator name several executors in the will so there is redundancy if someone is unable to accept the responsibility. If several executors are willing to undertake the role, they can share the duties as co-executors. An executor can be any competent adult, so many testators choose a family member or friend or appoint a professional such as a solicitor.

If the testator does not include this clause in their will, they will not have control over who looks after their deceased estate after their death. Instead, a suitable person will have to apply to the relevant Supreme Court for permission to be appointed as an administrator. This causes unnecessary complications for the testator’s family, as they will have to reach an agreement on who will administrate the estate and apply to the court for an endorsement of that decision.

  1. Bequeath Property

The most common type of clause in a will is one that gifts property to chosen beneficiaries. A testator should think carefully about the assets they own and how they would like to bequeath these assets and to whom. Proper estate planning will establish whether a particular bequest should be in the form of an absolute gift or in a more complicated form such as a conditional bequest or testamentary trust. The testator may also like to include some of their reasoning behind the gifts in case someone contests the provisions of the will.

  1. Bequeath Residue of Estate

It is essential that every will contain a clause that bequeaths the residue of an estate to a chosen beneficiary. This is important in case a particular bequest fails and reverts to the estate, or in case there are assets in the deceased estate that are not specifically listed in the will. If the assets are not included in the will and there is no clause relating to the residue of the estate, there will be a partial intestacy of the will. A residue clause ensures that all of the estate is accounted for without recourse to litigation.

  1. Attestation Clause

An attestation clause should be included at the end of a will below the signatures of the testator and the witnesses. A standard attestation clause will state that the testator signed the will in the presence of witnesses, who themselves signed in the presence of each other and the testator. In the absence of an attestation clause, the witnesses may be required to swear an affidavit as to the circumstances of the signing of the will before an executor can seek probate of the will. It may be difficult to obtain a grant of probate for a will that does not have an attestation clause if the witnesses are unavailable to attest to the will in the future.

These are just five of the essential clauses to include in a will. The experienced solicitors at Armstrong Legal can help you draft a legally binding will that includes all the clauses that are essential to convey your testamentary intent. Alternatively, the contested wills team can help you challenge or contest a will that is missing these important formal clauses. Telephone 1300 038 223 or contact our team to talk over your legal needs.

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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