What is a Will?

A Will is a legal document consisting of a deposition that a Will-maker intends to make of his property when the Will-maker dies. As well as giving away property in a Will, the Will-maker can appoint a person or persons, the Will-maker wants to be the executor or executors, to make sure the Will is followed. There are a number of optional clauses that may be inserted in a Will such as declaring:

1. How the Will-maker’s body is to be disposed of i.e. cremated or buried;
2. If the Will-maker has young children, the Will-maker may also appoint someone to be their guardian or guardians;
3. Declare that the Will-maker’s body is available for organ donation;
4. The Will-maker’s body is available for anatomical, therapeutic, medical or scientific purposes;
5. In respect of powers that the Will-maker holds directly or indirectly to appoint a trustee and is able to deal with it by Will, direct that those powers be held by the Will-maker’s executor or executors;
6. A clause giving power to the executor or executors to have access, handle, distribute and dispose of the Will-maker’s Digital Assets and the power to obtain, access, modify, delete and control the Will-maker’s passwords and other electronic credentials;
7. Declare the Will-maker’s wish that in making substantial investments the executor or executors obtain and consider the advice of someone who is experienced and knowledgeable in financial investment planning and, where appropriate, is also a member of the institute of chartered accountants, the Australian Society of Certified Practicing Accountants, the National Institute of Accountants, The Australian Stock Exchange or the Financial Planning Association of Australia Limited;
8. In relation to Superannuation Proceeds Special Clauses to maximise the chances of Superannuation proceeds are dealt with in accordance with the Will to maximise the chances of the distribution of such superannuation proceeds is achieved in the most tax effective way;
9. Direct payment out of the Will-maker’s estate of all the Will-maker’s debts, funeral and testamentary expenses.

What makes a Will valid?

A Will generally needs 3 things to be valid:

1. It must be in writing (whether hand written, typed or printed);
2. It must be signed and should be dated, and
3. The Will-maker’s signature must be witnessed by two other people who also need to sign the Will, preferably at the foot of each page, using the same biro or pen.

Even when the Will appears to be valid, sometimes it can be challenged. It might be challenged, for example if the Will-maker did not know or understand what the Will-maker was signing or if the Will-maker was forced to sign against his or her Will.

What happens if we die without a Will?

If you die without a valid Will (known legally as ‘dying intestate’) a standard formula is used to distribute the property and possessions. Usually, this means all your assets will pass to your spouse or children.

But the situation becomes more complex if you have a legal spouse and a de facto spouse (i.e. your separated and have a new unmarried partner), if you have children from different relationships, or if you die with no spouse and no children.

The standard formula only takes into account certain family members. So having a valid Will is vital if you do not have close family members and want to leave gifts to friends or charities.

Who makes sure your wishes are carried out?

When a Will is made, the Will-maker needs to appoint an executor or executors and an executor or executors in the alternative, who will handle the Will-maker’s affairs when the Will-maker dies. It is important to choose people who will be willing and able to work with each other.

Consideration should be given to inserting a clause to the effect that if any of the persons appointed as executor or executors refuses, is unable, by reason of death, incapacity or otherwise or is unwilling to act or continue as the Will-maker’s executor a person is appointed in his, her or their place.

An executor’s role is to obtain probate, pay the Will-maker’s debts and distribute the Will-maker’s assets in line with their Will.

Before a Will-maker nominates someone as the executor or trustee, the Will-maker should make sure they are comfortable taking on the responsibility the Will-maker is giving. It is often a good idea to appoint someone younger than the Will-maker or to nominate an alternative executor, in case the one nominated to be appointed dies before the Will-maker dies. It is also important to choose someone the Will-maker absolutely trusts, who will take responsibility for ensuring that the Will-maker’s estate is properly administered.

Because of their expertise in administering Wills, people often choose to appoint their solicitor as executor or one of the executors.

Can you change your Will?

A Will-maker is free to change his or her Will whenever he or she like. A Will-maker should always change their Will when circumstances change – for instance, if you divorce or remarry, or if one of the beneficiaries dies.

Note you cannot just change a Will by crossing out and writing something different.

As with a Will, changes to a Will need to be in writing signed and witnessed by two people.

When a Will-maker wants to make a major change to the Will-maker’s current Will, it is usually better to make a whole new will .

What happens if you marry or divorce?

Generally, getting married cancels the terms of any Will you have previously made. There are some exceptions which a solicitor can explain.

If you divorce, it cancels any gift you made to your former spouse under your Will. Again there are some exceptions which a solicitor can explain.

You should always make a new Will if you marry, divorce or if you are separated from your spouse, or if you have started a de facto relationship.

Where should you keep your Will?

A Will-maker should always keep his or her Will in a safe place and let the executor or executors know where to find it. That is because, if you misplace your Will and no one can find it, this will create problems and may prevent your Will being effective. A solicitor can store your Will for you (free of charge) and provide a copy to you for your own records.

Testamentary Trusts and Protective Trust

A Will-maker has the option of creating a Testamentary Trust and here is the link to an article on our website titled “Advantages of Testamentary Trusts”.

Advantages of Testamentary Trusts

A Will-maker may also create under the Will-maker’s Will a Protective Trust for the benefit of for example, a child or children with mental disabilities, drug or alcohol dependencies or other issues.