Every person over the age of eighteen should make a Will. Your Will sets out how you want your property and possessions distributed when you die.
Why make a Will?
Making a Will gives you the control of how your estate will be divided on your death and, by appointing an Executor you trust, who will divide it. Your Will can only be changed when you want to change it.
Many people think they are not wealthy enough to make a Will. A Will only comes into effect on your death, and it’s therefore reasonable to expect you will have more wealth then than you do today. Most employed people also have superannuation, and most funds have a default level of life insurance. This can be a substantial asset.
A Will is particularly important for anyone with a family or other dependants, especially if your family circumstances have changed recently.
A Will lets you ensure that the people you give your property to receive it promptly.
All too often, leaving no Will creates yet another worry for your family at a time of bereavement and disruption at home. Making a Will is a way of making life easier for them.
What if I don’t make a Will?
Dying without a valid Will means your property is divided according to a strict legislative formula known as ‘intestacy’. This formula is seldom appropriate, and you have no say in it. Worse still, the formula changes with your circumstances rather than your intentions, meaning that you may benefit people you never intended to.
It is not true that the government takes a deceased person’s property if there is no Will. This only happens in exceptional circumstances where there is no partner or other identifiable relatives.
The legal procedures where there is no Will are complicated and time consuming. This may raise conflict, expense, worry, and even hardship for your family.
Who can make a Will?
If you are of sound mind and at least eighteen years of age, you can make a Will.
What is a ‘valid Will’?
A valid Will is one that complies with the requirements set out in legislation. To be valid, your Will must be:
- In writing — handwritten, typed, or printed.
- Signed — ideally your signature should be on the bottom of each page and at the end of the Will.
- Witnessed — two adult witnesses (who are not beneficiaries) must be present when you sign the Will, and they must also sign at the end of the document. You and the two witnesses must all be together when the Will is signed and witnessed.
If your Will is not executed in strict compliance with these requirements, it will be ‘informal’. An informal Will may be accepted under certain circumstances, but it is safer to comply with these relatively simple formalities.
How do I ensure my Will is carried out?
Your Will should appoint one or more persons who are willing to handle your estate after you die — your ‘Executors’. They are in charge of drawing together your assets and distributing them to your beneficiaries.
Generally, your Executor should be the main beneficiary of your estate, however you can appoint any adult person. You should establish that the person you appoint is competent, organised, trustworthy, and prepared to accept the task.
The Executor will usually manage and distribute the estate with the assistance of a solicitor.
Can I change my Will?
Yes. You are free to alter your Will at any time. It is in your interest to review your Will every two or three years (or whenever any major event occurs in your family, your assets, or the taxation laws) to make sure the Will is up to date and still reflects your wishes.
How does my marriage, civil partnership, or civil union affect my Will?
If you made a Will before you married, entered into a civil union, or registered a civil partnership, it will automatically be revoked by that event, unless the Will was expressly made in contemplation of that event.
How will divorce affect my Will?
Any gift to or appointment of a former spouse in your Will is automatically revoked when the divorce order comes into force. This rule does not apply if you are only separated, or are contemplating divorce or separation. It is in your best interest to review your Will if you are divorced, separated, or in the process of separating or divorcing.
Can my Will be challenged?
Yes. The Family Provisions Act 1969 (ACT) permits partners, former partners, or children of the deceased to apply to the ACT Supreme Court for further provision out of the estate if they feel they have not been adequately provided for by the Will.
Step-children, grandchildren, or parents may also apply in certain circumstances. The court has the discretion to make an order and the amount of any order. You should see a solicitor if you are concerned about someone making a claim against your estate.
Your Will can also be challenged if someone thinks you did not have the necessary capacity to make the Will or if they think you were unduly influenced by someone else.
Where should I keep my Will?
You should keep your Will in a safe and secure place, such as with your solicitor. You should keep other original documents that may be needed to administer your estate with your Will (for example, title deeds, insurance policies, trust deeds, and the like).
You should keep a copy of your Will at home and note on it where the original is kept.
You should tell your Executor where your Will is kept.
How can a solicitor help me?
Your solicitor will:
- Make sure your Will is valid — that it is properly drafted, signed, and witnessed.
- Make sure your wishes are clearly expressed in the Will.
- Advise you on the making of adequate provision for your spouse and children, or for any former spouse or dependants, thereby minimising any challenges to your Will.
- Advise you as to any possible liability for capital gains tax or superannuation death benefits tax which might result from the provisions you intend to make in your Will.
- Advise you on choosing an Executor.
- Advise you, in consultation with your financial planner, on the best way to arrange your affairs to provide a suitable balance between enjoyment of property and income during life, and the preservation or creation of capital for your family, or other beneficiaries on death.
- Keep the Will in a safe place for you.
Will drafting is a complicated and specialised area of practice, and solicitors need to carefully consider many issues when crafting an effective Will for you. Therefore, you should choose a solicitor with specialist knowledge in Wills and Estates.
You should expect to pay a moderate fee for making a Will. If you are concerned about fees, discuss it with your solicitor in advance.
A Will is one of the most important legal documents you will ever make — it is a false economy to try to do it cheaply and without skilled, professional advice.
This publication is intended as a simple guide. It is not, and must not be taken to be, legal advice. For legal advice please consult a solicitor. While every care has been taken to ensure the accuracy of the information contained in this publication, the ACT Law Society does not make any representations or warranty as to the accuracy of the material in the publication. The publication has been written according to the applicable laws in Australia relevant to a resident of the Australian Capital Territory as at March 2017.