What is the Difference Between a Will and a Living Will?

The end of life is a confronting situation to think about. However, to ensure you have some control over how you live out your last days and what occurs after your death, it is important to create both a will and a living will. These two documents, which differ in nature, can help to give you peace of mind when planning for the future.

Overview of Wills

A will is a legal document outlining who you want to receive your personal property and in what manner upon your death.

There are a number of requirements to create a valid will. In Australia, you generally have to be aged 18 years old or older, unless you are married. You also need to have both intention and testamentary capacity. That is, you approve of and understand what the legal effect of the will is going to be, and have no mental illness preventing rational decision-making as to who will benefit from the will. In addition, you should ensure it is:

  • In writing, that is, it should be handwritten, typed or printed
  • Signed by the person making the will, or by another person in the presence of and at the direction of the will-maker
  • Witnessed and signed by two or more people at the same time, in the will-maker’s presence

Overview of Living Wills

In contrast, a living will is a document governing what medical treatment you will receive, in future situations where you lack the capacity to give consent. Also known as an ‘advance care directive’, it ensures doctors respect your personal wishes during your most vulnerable times. For example, you may choose to only allow particular treatments for certain conditions, or refuse all treatments altogether. Alternatively, you may also use a living will to nominate a substitute decision-maker to choose the treatment you will receive.

Most significantly, the requirements for a valid living will varies between the States and Territories in Australia. To understand what requirements apply to you, see here.

Final Notes

Having both a will and a living will are crucial for end of life planning, to make your wishes before and after death well known. To best ensure the full protection of your personal interests, you may wish to speak with an experienced wills lawyer.

Have more questions? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.

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