Prepare a Will

A Will sets out who will receive your assets when you die.

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What is a Will and do I need one?

A Will is a legal document that sets out who you want to receive your assets (including jewellery or sentimental items), money and property when you die. Making a Will is the only way you can ensure your assets will be distributed according to your wishes when you die.

According to research 40%* of Australians do not have a valid Will. If you die without a Will (Intestate) your estate will be distributed according to a Government formula and, if your only living relatives are more distant than cousins, your estate will pass to the government. (*Newspoll May 2013)

Is my Will valid?

For a Will to be valid it needs to comply with certain criteria:

  • Unless married, you must be over 18 years old (The Supreme Court can approve a Will for people under 18 only in exceptional circumstances)
  • It must be signed by the person making the Will and witnessed by two or more witnesses (beneficiaries should not be a witness as it may cancel out their entitlement)
  • You must have ‘testamentary capacity’. This means:
    • You know the legal effect of a Will
    • You must be aware of the extent of your assets
    • You must be aware of the people who would normally be expected to benefit from your estate
    • You must not be prevented by reason of mental illness or mental disease from reaching rational decisions as to who is to benefit from your Will

Professional Will-makers such as NSW Trustee & Guardian or your local solicitor will ensure areas covering testamentary capacity are addressed in the process of drafting a Will and will provide impartial witnesses. NSW Trustee and Guardian are also able to provide advice in relation to estate planning and who may contest your Will.

Preparing your own Will is not advisable. A Will must conform to strict legal requirements otherwise the Courts may decide it is not valid. If this is the case your assets will be distributed according to a pre-determined formula and not as you intended.

Anyone who is not legally qualified risks making a mistake, creating uncertainty or losing opportunities for good estate planning if they make a Will for themselves.

The precise wording of a Will is a specialised and important legal task. The ordinary meaning of words is not necessarily the same as their legal meaning. Ambiguous wording is extremely common in home made Wills and may result in substantial cost and delay in having the Supreme Court resolve the ambiguity.

A Will is an important legal document. It is therefore advisable to have your Will professionally drafted and ensure your wishes are properly recorded and carried out.

Can I prepare my own Will?

Preparing your own Will is not advisable. A Will must conform to strict legal requirements otherwise the Courts may decide it is not valid. If this is the case your assets will be distributed according to a pre-determined formula and not as you intended.

Anyone who is not legally qualified risks making a mistake, creating uncertainty or losing opportunities for good estate planning if they make a Will for themselves.

The precise wording of a Will is a specialised and important legal task. The ordinary meaning of words is not necessarily the same as their legal meaning. Ambiguous wording is extremely common in do-it-yourself Wills and may result in substantial cost and delay in having the Supreme Court resolve the ambiguity.

A Will is an important legal document. It is therefore advisable to have your Will professionally drafted and ensure your wishes are properly recorded and carried out.

Where should I store my Will?

Most people realise the importance of making a Will. However, a Will can only be used if it can be found when required. It is important to store your original Will in a safe place. It’s a good idea to tell someone close to you where your Will is stored. There have been many instances where family and friends were aware that a Will existed but they were unable to locate it when it was required.

If you make a Will with NSW Trustee & Guardian your original Will is held free of charge in a fireproof safe. You will receive a copy for your own records. This ensures your Will won’t be misplaced and is able to be easily located when required.

What happens if I die without a Will?

If you die without a Will, you die intestate. This means, as you didn’t have a Will, no-one knows who you wanted as your beneficiaries and who you wanted as your executor. Your assets will then be distributed according to a pre-determined formula with certain family members receiving a defined percentage of your assets despite what you may have wished. Dying intestate can result in your surviving spouse, family and friends suffering unnecessary financial hardship and emotional stress. If you are in a defacto or same sex relationship, it is necessary to supply sworn evidence that the relationship existed.

If you die intestate and your only living relatives are more distant than cousins, the State government will receive your estate.

What if I’m living in a defacto or same sex relationship and I die without a Will?

If your partner can satisfy the legal requirements proving the relationship, they may be entitled to share in your estate on your death. The necessity of proving the relationship can result in additional expense and distress at a time when they are grieving. It is much easier to draft a Will naming your partner as a beneficiary.

How often should my Will be revised or updated?

Your Will expresses your wishes at a particular point in time. It is advisable to regularly review your Will as your circumstances change so that it accurately reflects your current wishes.

Situations where you may want to update your Will include:

  • Marriage
  • Separation or divorce
  • Welcoming children or grandchildren into your family
  • The executor named in the Will having become ill, is unable to handle the responsibility or has died
  • A beneficiary named in the Will having died: when writing your Will, it is wise to name substitute beneficiaries
  • Death of spouse
  • The value of legacies diminishing over time: while you may have left a sum of money that seemed significant when you last made your Will, what is it worth in ‘today’s’ dollars?
  • Retirement often results in people restructuring their affairs. This is an ideal time to be proactive in your estate planning and possibly look at setting up tax effective arrangements through your Will
  • When you buy or sell assets: there are many examples of people bequeathing assets which they sold before they died. This resulted in some beneficiaries receiving nothing, while others received significantly more than was intended in the original Will
If I get married or divorced, does that affect my Will?

If you marry after you have made a Will, the Will is generally revoked or cancelled, unless it was made in anticipation of marriage. Marriage will not affect a gift to the person who is your spouse at your date of death.

If you divorce after you make your Will, it only revokes or cancels any gift to a former spouse. It also cancels your former spouse’s appointment as executor, trustee or guardian in the Will unless the former spouse is trustee of property left on trust for beneficiaries that include children of both you and your former spouse. However, this won’t apply if the Court is satisfied that the Will maker did not intend by divorce to revoke the gift or appointment. Those issues require specific legal advice.

Who can contest my Will?

While you are entitled to leave your assets to anyone you wish, in some circumstances, friends or relatives who believe they have not been sufficiently provided for are entitled to contest your Will.

People who can contest your Will under the Succession Act 2006 (NSW) are not restricted to your spouse and children. Claimants can include a defacto partner, any other dependants or a former spouse.

The person needs to convince the Court that they should receive a share or greater share of your estate, based on their ‘need’.

An increasing number of people now have complicated family structures such as blended families and second marriages. This may increase the likelihood of your Will being contested.

A professional Will maker is able to advise people making Wills on how to address possible challenges.

What is an executor and trustee and what do they do?

An executor of a Will carries out the wishes of a person after they die. The role of the executor is to manage the estate within the terms of the Will and protect the assets of the estate. A trustee looks after ongoing bequests to family and friends for a specific time stated in a Will – for example a trust for your children or grandchildren. The executor and trustee must comply with various laws and rules that govern the administration of deceased estates and trusts.

There are many steps involved in being an executor. Some of the duties of an executor include:

  • Locating the Will
  • Applying to the Supreme Court for a Grant of Probate of the last Will (Probate is a formal document that confirms the executor and gives them permission to administer the estate)
  • Determining the beneficiaries
  • Collecting assets
  • Making sure all claims and debts are received, assessed and paid if substantiated
  • Distributing assets according to the terms of the Will, including managing longer term trusts
  • Preparation and management of accounts
  • Lodging taxation returns
  • Defending litigation

Many people when nominated as an executor are unsure of what is expected of them. As you can see, being someone’s executor can be complicated and a lot of work often requiring an understanding of complex legal, financial and taxation matters. The person you appoint as executor is not legally obliged to accept the appointment. They may not be willing or able to undertake the duties, responsibilities and liabilities the role entails and may decide to appoint another person to act in their place. It is important to talk to your proposed executor to see if they are willing to be appointed.

Who should I appoint as my executor and trustee?

Many people appoint a friend or relative as their executor. They may do this as a compliment, a way of acknowledging their respect and admiration for that person. The reality is that they are left with the stress and responsibility involved in administering your estate at a time when they may be grieving.

Appointing an executor is not a favour that you bestow on a friend or relative. It is an important personal responsibility that can be time consuming, challenging and requiring complex decisions.

When appointing an executor, you should ensure that he or she has the time and capability to carry out the required duties. It can be advisable to avoid appointing someone who is a beneficiary and may have a conflict of interest. Furthermore, it is unwise to appoint an executor who is your age or older than you. It is not uncommon for an appointed executor to predecease the person appointing them. It is also best that you do not nominate executors who live overseas or interstate as this can cause delays and complications when administering the estate.

As being an executor can be a complex and time consuming task, it is wise to consider a professional and independent executor. This minimises the workload and burden on your family and friends at a difficult time.

More Information

For more information on Wills, please visit one of the links below:

The Australian Human Rights Commission also has a publication available - Your Rights at Retirement that includes a chapter Your right to plan your Will and other end of life decisions.