Monday, 2 August 2021

Every person over the age of 18 should make a will. Your will sets out how you want your assets distributed when you die.

Why make a will?

Making a will gives you control over who receives your assets (and in what share) upon your death. It also allows you to appoint an executor you trust, who will take care that the terms of your will are complied with. Your will should also address who you wish to receive your estate should your initial beneficiary fail to survive you.

In other words, your will should address any possible situation at the time of your death, even though it might appear to be a very unlikely situation.

You can change your will or part of it at any time as long as you have the capacity to do so.

Do I even need a will?

Many people think they are not wealthy enough to make a will.

You should consider that a will only comes into effect on your death, and it is likely that you will have more wealth than you do today. Most employed people also have superannuation, and most funds have a default level of life insurance. Your superannuation and such life insurance might form part of your estate and it 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.

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 assets are divided according to a strict legislative formula known as ‘intestacy’. This formula is seldom appropriate, and you have no say in who receives your assets and in what share. Worse still, the formula changes with your circumstances rather than your intentions, meaning that you may benefit people you never intended to.

The legal procedures to administer your estate where there is no will are complicated and time consuming. This may raise conflict, expense, worry, and even hardship for your family.

It is not true that the government takes a deceased person’s assets if there is no will. This only happens in exceptional circumstances where the deceased is not survived by a spouse or partner, lineal descendants, or other identifiable relatives.

Who can make a will?

If you are of sound mind and at least eighteen years of age (you have ‘testamentary capacity’), you can make a will.

If a person does not have testamentary capacity, it is possible to make an application to the Supreme Court for a court-authorised 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 must be present when you sign the will, and they must ideally also sign at the bottom of each page and must sign at the end of the will. You and the two witnesses must all be together until all three of you have signed the will.

If your will is not executed in strict compliance with these requirements, it will be termed ‘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 — they are called your ‘executors’. They are in charge of drawing together your assets and distributing them to your beneficiaries.

Your executor might 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. You may nominate more than one person to act as your executors at the same time.

Your 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 as long as you have mental capacity.

It is in your interest to review your will every 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 or termination of a civil union or civil partnership affect my will?

Any gift to or appointment of a former spouse or partner in your will is automatically revoked when the divorce order comes into force or the civil union or civil partnership is terminated. 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 separated, or in the process of separating or divorcing and at the latest when you are divorced or the civil union or civil partnership has been terminated.

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 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 testamentary capacity to make the will, or if they think you were unduly influenced by someone else in making your will.

Where should I keep my will?

You should keep your original 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 certified copy of your Will at home and note on it where the original is kept.

You should tell your executor where you keep a copy or certified copy of your will.

How can a solicitor help me?

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.

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.

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.

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.

Finding a lawyer specialising in wills

  • Online search: Find a lawyer – select ‘Wills (drafting)’ from ‘Areas of Practice’
  • Online search: Find a law firm – select ‘Wills (drafting)’ from ‘Areas of Practice’
  • Call the Law Society on 02 6274 0300 and we can put you in touch with a lawyer or a firm who can help you