Why do I need a Will?

To ensure that your assets are dealt with as you wish on your death.

You can leave your assets to anyone, however you do need to make adequate provision for your spouse and/or children.  Failure to do so can leave the estate open to a claim under the Succession Act, which means the estate will have to pay to defend any such claim.

What is a Will?

A Will is an official document that contains your instructions as to how your assets are to be distributed on your death.

The person making the Will is called a “testator” for male and “testatrix” for a female.

The persons inheriting under your Will are called the “beneficiaries”

The person or persons who undertake all the work to distribute your assets in accordance with your Will are the “Executor/s” (also referred to as “trustees”).

Generally, a valid Will must:

• be in writing;
• signed by you; and
• witnessed by two adults who have seen you sign the Will

What happens if I die without a Will?

If you die without a Will, you are said to die “intestate” and your assets will be dealt with in accordance with the terms of the relevant legislation.  Generally, your assets will be distributed in the following manner.

• if you have a spouse and no children, to your spouse entirely;
• if you have a spouse and children, and the estate is worth less than $200,000, the spouse still receives the whole estate.  If the estate is worth more than $200,000 the estate is distributed between the parties, with your spouse receiving the matrimonial home, personal properties and $100,000 and the balance of the estate to the children;
• if there is no spouse but children, the children receive the estate equally;
• where there is no spouse or children, to the deceased’s parents equally;
• where there is no spouse, children or parents, to the deceased’s siblings equally.  It can then further go down the line to grandparents, aunts and uncles if no other beneficiary is available.
• if no suitable beneficiary is found, the estate will be dealt with by the government.

As you can see, it can become quite complicated and even more so, where there are de facto spouses at the same time as “legal” spouses.

It is therefore very important to have a Will to ensure that you decide who gets what.

Who can make a Will?

Any capable adult can make a Will.  If a person has a mild intellectual disability or is in the early stages of dementia, they may still be able to make a Will.  This will depend on their understanding of the nature and effect of the document.  If a person has this understanding, then they have the capacity to make a Will.  If their capacity is in doubt, an assessment of the person's understanding should be made by an appropriate person, such as a medical practitioner, psychologist or psychiatrist.

Who should I appoint as my executor?

Your executor takes on the responsibility of obtaining probate of the Will (if necessary) and attends to payment of estate liabilities before distributing the estate funds.  You will need to choose a person who is trustworthy and responsible.  

Before you appoint someone you should be sure that he or she will in fact do all the things that you want.  Your executor is legally bound to carry out the written instructions in the Will.  

Can I change my mind?

You can easily revoke (or cancel) your Will at any time so long as you are of sound mind.  This is best done by way of a preparing a new Will.  Your Will should be reviewed on a regular basis to ensure that your circumstances have not changed and the Will is still appropriate.

Where happens if I marry or divorce?

Generally, an existing Will is revoked on marriage, unless the Will is made in contemplation of the marriage.  It is advisable to make a new Will on marriage.

Similarly, certain provisions of your Will become void on your divorce, namely in relation to the naming of your former spouse as executor.  You should prepare a new Will as soon as possible following separation.

A lawyer can assist you in preparing a Will that is valid and advise you generally in relation to the advantages and disadvantages of structuring your Will to optimise the benefit to your beneficiaries.

Information contained above relates to NSW law, however legislation is very similar in all of the Australian States.  This advice is of a general nature and is not intended to address the circumstances of any particular individual or entity. Advice from a lawyer should always be sought in relation to the interpretation of a Will, or if you wish to contest a Will.