Last Will and Testament - Template, Sample Form Pro · AU-law

LAST WILL AND TESTAMENT OF ________

I, ________, of ________, in ________, ________, being of sound mind, memory and understanding, declare this to be my Last Will and Testament (the "Will").

(A) PRELIMINARY DECLARATIONS

Revocation of Prior Wills

(1) I revoke all Wills, codicils and testamentary dispositions previously made by me and declare this to be my Last Will and Testament.

Marital Status

(2) I declare that at the date of this Will I am not married and am not in a de facto relationship. I acknowledge that, under the Wills Act 1968 (ACT) (or the equivalent legislation of the jurisdiction in which I am domiciled at my death), my subsequent marriage or entry into a de facto relationship may revoke this Will in whole or in part.

Children

(3) I have ________ living children, as follows:

________, born on ________

(4) The term "child" or "children" as used in this Will includes the children named above and any children born to me or legally adopted by me after I have signed this Will, but excludes step-children and foster children.

(B) EXECUTORS AND TRUSTEES

Definition

(5) The term "my Executor" used throughout this Will includes both the singular and the plural number, as well as both the masculine and feminine gender as appropriate and required by context. The term "Executor" in this Will is synonymous with and includes the terms "Executrix", "Fiduciary", "Trustee" or "Legal Personal Representative" and means my executors or legal personal representatives for the time being.

Appointment

(6) I appoint ________ of ________ and ________ of ________ to be the Executor and Trustee of this my Will, jointly and severally.

(7) If any person appointed by me as Executor is unable or unwilling to act or to continue to act, then I appoint ________ of ________ to be the Executor and Trustee of this my Will in their place.

Executor Holds Estate on Trust

(8) My Executor shall be the trustee or trustees of each trust under this Will unless or until an alternative trustee is appointed under this Will or pursuant to the relevant laws governing trustees in ________.

(9) My Executor will hold my estate on trust, subject to the powers set out in this Will.

(10) After paying any debts and testamentary expenses related to my death or the administration of my estate, and after selling, calling in or converting into money any part of my estate, my Executor must deal with the balance of my estate in accordance with this Will.

Powers and Duties of Executor

(11) Unless otherwise specified in any express provisions of this Will:

(a) My Executor will have all of the powers, discretions and authorities conferred by the law of the Commonwealth of Australia and the law of ________, including under the Trustee Act 1925 (ACT) or the equivalent legislation of the relevant jurisdiction.

(b) My Executor will have all of the powers, discretions and authorities of a natural person who is the absolute beneficial owner of my estate.

(c) My Executor shall not be restricted or limited, in relation to their general or specific powers, by any provisions relating to trustees contained in any law of the Commonwealth of Australia or of any State or Territory of Australia, save where such provisions cannot lawfully be excluded.

(12) My Executor shall hold the following specific powers, and such specific powers shall be in addition to and shall not limit the general powers set out in this Will:

(a) To pay my legally enforceable debts, funeral and testamentary expenses, taxes and all other expenses in connection with my death, the administration of my estate and the trusts created by this Will. If any real property devised in this Will remains subject to a mortgage at the time of my death, then I direct that the devisee taking that mortgaged property will take the property subject to that mortgage and will not be entitled to have the mortgage paid out or discharged from the remaining assets of the residue of my estate.

(b) To calculate net income in accordance with any accounting, taxation or other standards, concepts, guidelines or definitions; to use any income and/or capital of my estate to pay capital gains tax applicable to the disposal of any part of my estate; and to apportion liability for that tax.

(c) To take any and all necessary actions to obtain a grant of probate of this Will as simply and economically as possible, under the laws of ________.

(d) To separately apply, allocate, record, identify, pay or accumulate any capital, income, credit, rebate, right, entitlement or benefit, and to do so with reference to any category, source, class or other method of identification.

(e) To allocate, appropriate or devote any asset, share or interest in an asset of my estate which is not specifically given to a Beneficiary, in full or partial satisfaction of a bequest or share of my estate, without the need to obtain the consent of any Beneficiary.

(f) To close, open or operate any investment or bank accounts.

(g) To make and change investments with the same freedom as if the investments were beneficially owned by my Executor.

(h) To loan money to my Beneficiaries on whatever terms my Executor may choose (whilst paying attention to any taxation or other implications), including both secured and unsecured loans, and loans which are subject to interest or interest free.

(i) To invest in real property for the use or occupation of a Beneficiary or in other non-income-producing assets such as unsecured interest-free loans.

(j) To hold, use, surrender, exchange, invest, lease, rent, mortgage, manage, sell, repair, improve, dispose of, or grant options over without being limited as to term, and to repair, improve, insure, or otherwise handle any and all real property or personal property belonging to my estate as my Executor deems prudent and necessary without liability for loss or depreciation, including but not limited to any shares, units, debentures or securities of any company or trust.

(k) To purchase, acquire, liquidate, maintain, sell, lease, surrender, exchange or convert any investments or securities, and to vote stock or exercise any option concerning any investments or securities on whatever terms as my Executor determines without liability for loss.

(l) To enter into any leases on whatever terms my Executor may choose.

(m) To sell, call in and convert into money any part or the whole of my estate.

(n) To postpone or delay the sale or conversion of any part of my estate for as long as my Executor chooses, without liability for loss.

(o) To contribute to a superannuation, pension or annuity fund for the benefit of a Beneficiary, or to facilitate, direct or allow such a contribution.

(p) To acquire any pension, annuity or other income stream for the benefit of a Beneficiary, or to facilitate, direct or allow such an acquisition.

(q) To contribute to a Special Disability Trust (within the meaning of the Social Security Act 1991 (Cth) or the Veterans' Entitlements Act 1986 (Cth)), or to facilitate, direct or allow such a contribution.

(r) To treat any income from assets held by my Executor which is derived or received pending the satisfaction of a contingency, or which is derived or received during a life interest, as income arising at the time it is received by my Executor and not at some other time period.

(s) To purchase any part of my estate, provided that it is purchased on arm's length terms and at a value determined by a qualified valuer.

(t) To make declarations in relation to the beneficial ownership of specific assets of my estate, which may include but is not limited to business goodwill or any insurance policies (such as life insurance policies).

(u) To delegate any power or discretion that my Executor may hold, and to execute any powers of attorney or other documents or instruments as required in order to give effect to such delegation.

(v) To continue to operate, or to direct, facilitate or permit the continued operation of, any business that exists at the time of my death, including but not limited to by employing any person(s) (including my Executor) in the conduct of such business.

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(x) To maintain, settle, abandon, commence, defend, or otherwise deal with any legal proceedings brought by or against my estate.

(y) To pay reasonable remuneration to any lawyers, accountants or other professional persons deemed necessary for the proper administration of my estate, and to delegate authority where delegation would be prudent and beneficial to the trust or estate.

(z) To exercise and continue any power provided in this section notwithstanding the termination of the trust, until all assets of the trust have been distributed.

Advances to a Prospective Beneficiary

(13) The term "Prospective Beneficiary" used throughout this section of my Will means any person that is expected to become a Beneficiary of a part of my estate at some future date.

(14) If any part of my estate is held on trust in the expectation that a Prospective Beneficiary will become the Beneficiary of that part of the estate, then:

(a) My Executor will have the authority to pay or apply any part of the net income or capital of that part of my estate for the maintenance, support, advancement, education, accommodation, food, clothing, medical, dental and other day-to-day needs of that Prospective Beneficiary, or of a person considered by my Executor to be a dependant of that Prospective Beneficiary.

(b) My Executor may make payments, without seeing to their application, to the care giver of the Prospective Beneficiary, and may accept the receipt of the recipient of such payments as an absolute discharge.

(C) CARE FOR CHILDREN

(15) In the event that I die and leave children under the age of 18 years:

(a) I appoint ________ of ________ to be the sole guardian of my children (the "Guardian").

(b) If ________ is unable or unwilling to serve as Guardian, I appoint ________ of ________ to serve as the sole Guardian of my children.

(c) I direct that the Guardian shall be responsible for the day-to-day care, long-term care, development and welfare of my children until they reach the age of 18 years. I acknowledge that any such appointment is subject to the relevant family law and child welfare legislation, including the Family Law Act 1975 (Cth).

(d) I direct that it is my wish that my Executor uses their powers to ensure that any person caring for my children (whether or not as Guardian) does not incur any financial burden or loss as a result of such care.

(e) In addition to any other powers that my Executor holds, I authorise my Executor to provide funds from my estate as reasonable and necessary to ensure that my children's maintenance, support, advancement, education, accommodation, food, clothing, medical, dental and other day-to-day needs are met, regardless of whether such funds may also directly or indirectly benefit my Guardian or the children of my Guardian.

(D) PET CARE

(16) I direct that my pet ________, should it be alive and healthy at the time of my death, shall be cared for by ________ of ________, as their own with all the rights and responsibilities of ownership. If the said ________ is unwilling or unable to care for my pet, I direct that my Executor shall select an appropriate person to accept the pet and act as its permanent guardian.

(17) I direct that my Executor give the sum of $________ (________ dollars) from the residue of my estate to the person who accepts the role of permanent guardian for ________ as a one-time reimbursement for the expense of caring for, feeding and maintaining the health of my pet.

(18) If any of my pets are suffering, in poor health, or beyond reasonable treatment at the time of my death, I direct that, according to their discretion, my Executor shall have my pets humanely euthanised as soon as practicable. All costs relating to the medical care, treatment and euthanasia of my pets during the period immediately following my death and prior to adoption by a permanent guardian shall be paid out of the residue of my estate.

(19) If my Executor is unable to place any of my pets with a suitable caretaker or permanent guardian for any reason, with reasonable effort, I direct that, according to their discretion, my Executor shall give my pets to a no-kill animal shelter where there is a reasonable likelihood that they will be placed with an alternative permanent guardian.

(E) FORGIVEN DEBTS

(20) I wish to forgive the following debts owed to me:

________

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(F) DISPOSITION OF ESTATE

(22) To receive any share of the residue of my estate under this Will, a Beneficiary must survive me by 30 days and attain the age of ________ years. Any references in this section to a person who survives me means a person who survives me by 30 days and attains the age of ________ years.

(23) Beneficiaries of the residue of my estate will share in all of my property and assets that I have not bequeathed via specific gifts or that are not otherwise required for the repayment of debts owed, including but not limited to burial or funeral expenses, expenses associated with obtaining probate of this Will, payment of taxes, or any other expenses associated with administration of my estate. The residue of my estate is to be distributed between the Beneficiaries I have designated here, with the Beneficiaries each receiving a share of the residue of my entire estate. All property distributed under this Will is subject to any encumbrances or liens attached to the property.

(24) I direct that:

(a) The residue of my estate shall be distributed in equal shares to such of my currently living or future children who survive me by 30 days and attain the age of ________ years.

(b) If a child of mine does not survive me by 30 days and attain the age of ________ years but leaves children of their own who survive me by 30 days and attain the age of ________ years, such deceased child's share shall be distributed in equal shares to the children of such deceased child who survive me by 30 days and attain the age of ________ years.

(25) If no above-named Beneficiaries survive me, the residue of my estate shall be distributed to my next of kin in accordance with the rules of intestacy under the law of ________.

(26) I acknowledge that certain persons may be entitled to make a claim for provision out of my estate under the family provision legislation of the relevant jurisdiction (such as the Family Provision Act 1969 (ACT) or its equivalent), notwithstanding the terms of this Will.

(G) FUNERAL WISHES

(27) I declare that my funeral wishes are as follows:

________

(H) ORGAN AND TISSUE DONATION

(28) I declare that it is my wish that my body be made available for organ and tissue donation in accordance with the relevant transplantation and anatomy legislation.

(I) BINDING DEATH BENEFIT NOMINATION

(29) I draw my Executor's attention to the fact that, at the time of preparing this Will, I have made a binding death benefit nomination in relation to my superannuation account with ________. I acknowledge that any superannuation death benefit may not form part of my estate and may be paid in accordance with that nomination and the governing rules of the fund and the Superannuation Industry (Supervision) Act 1993 (Cth).

(J) SPECIFIC GIFTS AND BEQUESTS

(30) I give the following specific gifts and bequests, free of all duties and taxes, to the Beneficiaries named below, provided that such Beneficiary survives me by 30 days:

________ of ________ shall receive ________.

(31) If any Beneficiary of a specific gift or bequest does not survive me by 30 days, then that specific gift or bequest shall lapse and form part of the residue of my estate, unless otherwise expressly provided in this Will.

(K) MISCELLANEOUS PROVISIONS

Interpretation

(32) Headings and titles are included in this Will for convenience only and shall not affect its interpretation.

(33) Unless expressly provided otherwise, any reference to the singular in this Will includes the plural and vice versa.

(34) If the inclusion of any word or provision in this Will would cause any part of this Will to be invalid, then this Will should be construed as if that word or provision were not included.

Governing Law

(35) This Will shall be governed by and construed in accordance with the laws of ________ and the Commonwealth of Australia.

Individuals Omitted from Bequests

(36) If I have not bequeathed property or any portion of my estate in this Will to one or more of my heirs, the failure to do so is intentional and not due to any oversight on my part, except as otherwise expressly provided in this Will.

Insufficient Estate

(37) If the value of my estate is insufficient to fulfil all of the bequests described in this Will, I direct that my Executor decrease each bequest by a proportionate amount according to my Executor's discretion and best judgment.

No Contest

(38) If any Beneficiary under this Will contests in any court any of the provisions of this Will, or otherwise seeks to challenge the validity of this Will or any gift or bequest made under it (other than a claim properly made under applicable family provision legislation), then any share or interest in my estate given to that contesting Beneficiary under this Will is revoked and shall be disposed of in the same manner provided in this Will as if that contesting Beneficiary had predeceased me.

Severability

(39) If any provision of this Will is deemed unenforceable, the remaining provisions will remain in full force and effect wherever possible.

SIGNED by the Testator, ________, in ________ on this ________ day of ________ 20________.

______________________________________
________, Testator

SIGNED by the Testator in our joint presence, and attested by us in the presence of the Testator and of each other, all being present at the same time:

___________________________
Witness #1 Signature

________
Witness #1 Printed Name

________
Witness #1 Occupation

________
Witness #1 Address

___________________________
Witness #2 Signature

________
Witness #2 Printed Name

________
Witness #2 Occupation

________
Witness #2 Address