Making a Will

A Will is a document that sets out how and to whom you wish your property to be given after your death. Your Will should also appoint one or more persons to be the ‘Executors’.

Every person over the age of eighteen should seriously consider making a Will.

Why should I 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 who you trust, who will divide it. Your Will can only be changed when you want to change it.

Many people think that they are not wealthy enough to make a Will, but a Will is forward looking since it only comes into effect on your death. It is reasonable to expect you will have more at the date of your death than you do today.

It is worth remembering that most employed people have superannuation and most superannuation funds have a default level of life insurance. This can be a substantial asset and good estate planning advice can ensure it goes to the right person or people.

A Will is particularly important for anyone with a family or other dependants, especially if you are recently married, separated or divorced, an single parent, you have a blended family, or you are estranged from members of your immediate family.

A Will enables you to ensure that the people to whom you give your property receive it promptly and in a tax-effective manner. Good estate planning advice can minimise Capital Gains Tax (CGT) and Superannuation Death Benefits Tax liabilities.

All too often, leaving no Will creates yet another worry for your family at the time of bereavement and disruption at home. Making a Will is a way of making life easier for them.

What happens if I do not make a Will?

Dying without a Will means your property is divided according to a seldom-appropriate, strict legislative formula known as ‘intestacy’ – you have no say in this. 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, children, grandchildren, parents, brothers or sisters, nieces or nephews, aunts or uncles, or cousins.

The legal procedures where there is no Will are also more complicated and time consuming and increase the probability of conflict between family members. This may cause expense, worry and even hardship to 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.

A Will made by a person under the age of eighteen is not valid unless he or she is or has been married or the Court grants leave to make a Will in terms disclosed to the Court, or the Will is made in contemplation of a marriage on the solemnisation of which the Will becomes valid.

What is meant by a “valid Will”?

A valid Will is one that complies with the formal 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; and
  • Witnessed — two witnesses 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 being signed and witnessed.

If your Will is not executed in strict compliance with these requirements, it will not be formal. An informal Will may be accepted by the Court under certain circumstances, but it is safer to always comply with these relatively simple formalities.

You should see an experienced estate solicitor for advice about informal Wills.

Once a Will is made, how do I ensure that it is carried out?

As discussed above, your Will should appoint a one or more persons who are willing to handle your estate after you die. These people are your ‘Executors’ and are in charge of drawing together your assets and distributing it to your beneficiaries.

Generally, your Executor should be the main beneficiary of your estate. However, you can appoint any adult person as your Executor. Naturally, it should be established that this person is competent, organised, trustworthy and is prepared to accept the task.

You may consider appointing your solicitor to be your Executor, but you should be aware that they may insist on the inclusion of a charging clause if they were to act as your Executor. Your solicitor is obliged to give you certain advice if they prepare a Will in these terms.

In any event, the Executor will usually and should manage and distribute the estate with the assistance of a solicitor.

Can I alter my Will if I change my mind?

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.

However, you cannot simply make an alteration by, for instance, crossing something out on the original Will and writing in your new wishes.

To change your Will you may execute a Codicil (an amendment to an existing Will or Codicil) or execute an entirely new Will with all the amendments you want.

Wills are now prepared with the use of word processors. It is therefore relatively easy to make amendments to the digital copy before re-printing and then re-executing the Will. This approach means that there will be one document that reflects all of your intentions, rather than two or more documents.

The routine use of Codicils is therefore discouraged.

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 when you marry, enter a civil union or civil partnership, unless the Will was expressly made in contemplation of that particular marriage, civil union or civil partnership.

So, if you marry, enter into a civil union, or registered a civil partnership after you made your last Will, it is more than likely you will need to make a new Will.

How will divorce affect my Will?

Any gift or appointment in favour of a former spouse in your Will is automatically revoked when the divorce order comes into force. Importantly, the same rule does not apply if you are only separated or are contemplating divorce or separation.

It is in your best interest 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, secure place, such as with your solicitor. You should consider keeping any other original documents that may be needed to administer your estate with your Will (for example, Title Deeds, original 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 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; and
  • keep the Will in a safe place for you.

Will drafting is becoming an increasing complicated and specialised area of practice. As a result, solicitors need to carefully consider many more issues when crafting an effective Will 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.

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, and is not intended as legal advice. 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 9 December 2014.