FAQ - Wills

Frequently Asked Questions about Wills & Estate Planning

What is a Will and why do I need one?

A Will is a written legal document that provides how you would like your assets and liabilities to be dealt with after you die.  Your Will names people or organisations who you have chosen to receive your Estate when you die. These are known as your Beneficiaries (for more information on Beneficiaries, see “What is a Beneficiary” below). Your Will nominates Executors who is tasked with carrying out your wishes (for more information on Executors, see “What is an Executor” below). Your Will is arguably the most important document you will sign in your lifetime. It is highly advisable that your Will is prepared by a Wills specialist. 

Who can make a will?

If you are over the age of 18 years old and if you have the mental capacity to understand the terms of your Will, you are able to make a Will. In some limited circumstances, people under 18 can also make Wills.

What happens if I don’t have a Will?

If you do not have a valid Will at the date of your death, this means that you die Intestate. This means that no one knows how you wanted to divide your Estate when you die. If you die Intestate then your Estate Assets will be divided amongst your relatives in accordance with a pre-determined formula under the Administration Act 1903.

Beware, the provisions of the Administration Act are not necessarily just and will likely not deal with your Estate the way you intend. Dying Intestate can result in your surviving spouse, children, family and friends suffering unnecessary financial hardship and emotional stress.

What happens if I die without a Will and I am in a de facto relationship?

If you die without a Will, then your bona fide de facto partner is treated as your spouse under of the Administration Act 1903. However, they will have to prove that they were in fact your de facto partner.  Under the Administration Act, you have a de facto partner if you lived as de facto partners for a period of at least 2 years immediately before the date of your death.

If you die, leaving a husband or a wife and a de facto partner, your husband or wife may also be also entitled to a portion of your Estate. The situation is more complicated and your de facto partner will have to seek legal advice.

What happens if I die without a Will and I am in a de facto same sex relationship?

Under the Administration Act, same sex de facto relationships are treated in the same manner as all other de facto relationships. For more information on dying without a Will and de facto relationships, see “What happens if I die without a Will and I am in a de facto relationship?” above.

What is required for my Will to be legally valid? How do I ensure my Will is valid?

Generally, in order for a Will to be legally valid, the Will must:

  • be in writing, either typed or handwritten;
  • contain the will-maker's signature which was made or acknowledged in the presence of at least two witnesses, present at the same time;
  • contain the witnesses signature, signed in the presence of the will-maker; and
  • be made with the intention of executing the Will.

In order to ensure that your Will is valid, we recommend that you seek specialist Wills advice before signing a Will. In some instances, the Court will accept an unsigned or invalidly signed Will as being a legally valid Will. However, such instances are rare and usually require the Executor to seek legal advice and spend additional, unnecessary costs.

Can I prepare my own Will or use a do-it-yourself Will kit?

Preparing your own Will is highly unadvisable. In the case of Rogers v Rogers Young [2016], Master Sanderson aptly said:

“On numerous occasions when dealing with so-called homemade wills, I have observed they are a curse. Homemade wills which utilise what is sometimes known as a ‘will kit’ are not much better. This case proves the point. The disposition effected by the will is not complicated and no doubt the testator had clearly in mind what she intended to achieve. But the way the will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.”

A Will must conform to strict legal requirements otherwise the Courts may decide it is not valid and you will die Intestate see, “What happens if I don’t have a Will” above.

Anyone who is not a Wills specialist risks making a mistake and creating ambiguity. The wording of a Will is a precise, specialised and important legal task. Ambiguous wording is extremely common in home-made Wills and may also result, as with the case of Rogers v Rogers Young, in substantial cost and delay in having the Supreme Court resolve the ambiguity.

Can my Will or my Estate be Contested?

Yes, both your Will and your Estate can be contested. Your Will can be contested if a potential beneficiary disputes that you had the requisite mental capacity to understand your Will when it was signed by you, regardless of whether the distributions under your Will are fair and just. There is a presumption that you will have testamentary capacity when you signed your Will but the presumption can be rebutted if there is evidence to suggest that you lacked testamentary capacity. The same will apply if you signed your Will under duress or undue influence.

Your Estate, on the other hand, can be contested even if you had testamentary capacity when you signed your Will. The law of family provision allows a Court to vary the provision made by your Will to enforce your moral obligation to properly and adequately provide for the maintenance and support of your family and financial dependants. If you leave an eligible claimant out of your Will, they have a right to make a claim for greater provision out of your Estate.

Depending on the circumstances, an eligible claimant may now include:

  • Spouses (including de facto spouses);
  • Children;
  • Former spouses;
  • Step-children;
  • Grandchildren; and
  • Parents.

What can I include in my Will?

Your Will can be very general. For example, you can leave your entire Estate to your husband or wife, or your Will can be much more specific. What you include in your Will is entirely up to you but the more specific it is the more likely you will have to change it at a later date. If your Will is poorly written and unclear it is more likely that it may be challenged if you leave people who feel that they have some claim on your Estate. See “Can my Will be Contested?” above.

Generally, your Superannuation is not included in my Estate as it is not automatically considered a “Willable Asset”. If you have any concerns about your Superannuation after your death, you should seek the advice of a lawyer.

What is an Executor?

In short, your Executor is a person or institution appointed by you to carry out the terms of your Will. They will be tasked with obtaining a Grant of Probate, valuing your Estate and distributing your Estate in accordance with the terms of your Will. In reality, the role of your Executor could be much broader than the above. We recommend that the person you select as your Executor is someone you trust to manage your Estate effectively.

In addition to managing your Estate generally, your Executor could be tasked with any and all of the following:

  • Locating your original Will;
  • Notifying your Beneficiaries of your death;
  • Completing income tax returns;
  • Attending to funeral arrangements; and
  • Defending litigation against the Estate.

For more information on who you should select as your Executor, please see the Butlers blog, “Choosing the Right Executor?”

https://www.butlers.com.au/blog/entry/2065-choosing-the-right-Executor.html

What is the position if there are two Executors and they don't agree to work together to obtain a Grant of Probate?

An Executor is appointed in order to obtain Probate and discharge their duty of care towards the Beneficiaries. If a disagreement between two or more Executors is causing delay in the application for Probate, one of them can give notice to the other that they intend to apply for Probate and call on the other Executor to join in the application. If the other Executor fails to respond within the specified time, the first Executor may proceed to apply for Probate, with leave being reserved to the other Executor to come in and prove the Will.

If the Executors disagree on how to manage the Estate once a Grant of Probate has been made, the Executor can apply to the Court to resolve any dispute. An easier and more cost effective option is for you to nominate in your Will, a third party who can resolve disputes between Executors.

What is a beneficiary?

A Beneficiary is any person or organisation who you nominate to receive any portion of your Estate when you die. You can choose with absolute discretion who should benefit from your Estate. But, be aware that if you leave someone out of you Will, they may have a right to contest your Estate. See “Can my Will be Contested” above. An adopted child has the same rights in relation to their adoptive parents as a natural child born to them.

Who should be appointed as a Guardian to my minor children?

Unlike the popular belief, a child’s Godparent does not automatically become their Guardian when their parents die. A Guardian is a person appointed under a Will or by the Family Court, who is tasked with the care and welfare of your child and with making important lifestyle decisions until your child turn 18 years old. Although appointing a Guardian in your Will may make your intentions clear, it is not binding. The Family Court has an overriding discretion to appoint a different Guardian or remove a Guardian of your child where it considers this to be in your child’s best interests to do so. Nevertheless, we recommend you appoint a Guardian for child in your Will on the basis that the Court will only go against the testator’s wishes in limited circumstances

The Guardian should be someone who you trust to raise your child with the same morals and values that you intend to raise them with. Ideally, the Guardian should be some who lives close to your home, so that you child will not be uprooted unnecessarily. You should also consider whether you wish to give an allowance or a lump sum fund to the Guardian for accepting the responsibility of taking care of your child.

When should I review and my Will?

We suggest that you review your Will when there are:

  • Changes within your Family;
  • Changes to your Assets; and/or
  • Changes to the Law.

Your Will should also be reviewed if the original Will has been lost or if your nominated Executors have died, or have indicated that they no longer wish to act as your Executors. In any event, we recommend that you review your Will at least every three to five years to check on the details above and to ensure that your wishes are accurately reflected in your Will.

If I get married or divorced does that affect my Will?

Yes. Both marriage and divorce will render your current Will invalid. If you have recently gotten married or divorced, you should seek legal advice, otherwise you risk dying Intestate. The creation of a de facto relationship and the break-up of a de facto relationship on the other hand, does not invalidate a Will.

Where should I store my Will?

It is an urban myth that there is an automatic Wills registry where all original Wills are kept. It is your responsibility to ensure that your Will is kept in a safe place, such as with your bank or with your lawyer. We also recommend that you advise your Executors of where your original Will is kept.

What is a Deed of Wishes?

A Deed of Wishes is a document that is ordinarily kept with your Will which outlines information to your Executor/Trustee to help them administer your Estate in accordance with your wishes. It is ordinarily drafted by a solicitor if a Testamentary Trust is set up within your Will and it outlines how you want the Testamentary Trust to be managed. It typically includes direction to the Executor/Trustee as to how they should deal with the capital and the income of the Trust, whether they should treat all Beneficiaries equally, and how to deal with Beneficiaries who have a disability or problems with addiction.

Unlike your Will, it is not a publically available document and therefore it allows you to express your wishes privately.

Does a Will need a Grant of Probate or Letters of Administration before assets of the deceased can be dealt with?

If your Estate is small and the assets comprise of a motor vehicle, furniture and personal effects and a small amount of money in the bank for example, then these can usually be dealt with by producing a certified copy of your Will along with a death certificate and evidence of the Executor’s identity to the bank or other institution. A Grant of Probate will likely not be necessary. Obtaining a Grant of Probate will however, offer your Executor more protection.

Where there is no Will, and if you have a small Estate, subject to production of the death certificate and evidence of the identity of the next of kin, generally payment will be made to the next of kin who will then be liable for payment and distribution to the persons entitled pursuant to the Administration Act.

How much does a Will cost?

At Butlers, we offer various set price packages, depending on the complexity of your Will.  Contact us now, for an obligation free telephone discussion with one of our Wills Lawclerks regarding your Will.