Death might be inevitable, but dying without a valid Will—known as dying intestate—can create chaos for your loved ones and lead to outcomes you never intended. In Australia, the law around Wills is complex, state-specific, and full of unexpected twists. Yet, according to recent surveys, more than half of Australians still don’t have a Will. Why? Procrastination, myths, and a general discomfort with planning for death.
This article unpacks the fundamentals of Wills in Australia, explores common pitfalls that show just how important a Will can be.
What Is a Will?
A Will is a legal document that sets out your wishes for how your property (your “estate”) should be distributed when you die. It can also appoint guardians for minor children and specify your funeral wishes.
For a Will to be valid in Australia, it must generally:
• Be in writing (typed or handwritten),
• Be signed by the testator (the person making the Will),
• Be witnessed by two adults who are not beneficiaries.
Different states and territories may add their own wrinkles, but the general principles are consistent nationwide.
Why You Need a Will (Even if You’re Not Rich)
Many Australians assume Wills are only for the wealthy or elderly. Not true. If you own a car, have superannuation, or have children, you need a Will. Without one, your estate will be distributed according to a rigid statutory formula, which might not reflect your actual wishes.
For example, in New South Wales, if you die without a Will and leave behind a spouse and children from a previous relationship, your estate could be split in ways that lead to bitter legal disputes.
Who Gets What if You Die Without a Will?
Dying without a Will—known as dying intestate—means your estate is distributed according to a strict legal formula set out in each state or territory’s succession laws. While the exact rules vary slightly across jurisdictions, the general order of priority is as follows:
1. Spouse or de facto partner: They usually receive the entire estate if there are no children, or a significant portion if there are.
2. Children: If there’s no surviving spouse, the estate is divided equally among the children. Stepchildren are not automatically included unless formally adopted.
3. Parents: If no spouse or children exist, the estate goes to the deceased’s parents.
4. Siblings, then nieces and nephews, followed by grandparents, aunts and uncles, and cousins, in that order.
5. The State: If no eligible relatives can be found, the estate may be forfeited to the State under a legal principle called “bona vacantia”.
This formula can lead to unexpected and sometimes unfair outcomes—especially in complex family situations like blended families, estranged relatives, or long-term de facto relationships that weren’t formally recognised. That’s why having a valid Will is so crucial: it ensures you decide who inherits what—not the government.
The Dangers of a DIY Will
With online templates and Will kits sold at newsagents, it’s tempting to go the DIY route. But this can be risky. Australian courts have invalidated Wills for everything from missing signatures to ambiguous language to coffee stains obscuring key provisions.
When Should You Update Your Will?
Life changes, and so should your Will. Update it after major events like:
• Marriage or divorce
• Birth of a child
• Buying property
• Death of a beneficiary or executor
In most states, marriage automatically revokes a Will—unless the Will was made “in contemplation of marriage.” Divorce may affect parts of the Will (like gifts to a former spouse) but not necessarily all of it.
Final Thoughts: Make It Easy for the Living
A Will isn’t really for you—it’s for the people you leave behind. It’s the legal version of cleaning up after yourself. A clear, valid, and up-to-date Will can prevent family arguments, court cases, and confusion during what is already a difficult time.
Next article we will look more in depth into what can be included within the Will.
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