Last Will and Testament

The new Succession Act 2006 which came into force in 2008 has changed the landscape of Wills and Probates. It replaces the longstanding Wills Probate And Administration Act 1898 and makes new law.

People may ask many questions prior to making a Will. Do I really need to see a lawyer to complete my Will? Can't I just use a kit or buy a pre-prepared Will? It is estimated that about 30-40% of Australians do not have a valid will. Mistakes and uncertainty requiring legal interpretation or people unexpectedly challenging the will jeopardize your intentions being carried out correctly.

A Will is reasonably economical to prepare with proper legal assistance. There is no substitute for qualified and specific professional advice. Unintended errors or omissions in a Will can delay or thwart administration of your Estate. They can be very costly to your Executors and intended beneficiaries, and in some extreme cases, entirely undermine the validity of a Will.

Even if you have completed a Will, it may be extremely difficult to have it accepted for Administration (Probate) by the Supreme Court, unless the witnesses to your Will have attended with a lawyer or notary to complete sworn affidavits confirming that they indeed did attend upon your execution of your Will.

Your lawyer will generally act as a witness to your Will, and complete this documentation at the same time your Will is executed. If your witnesses predecease you or cannot be located, and no such Affidavits of Execution are available, your Will may be rejected.

Update your will when getting married, separated or divorced, when you are in a de factorelationship, if the named executor changes, if a beneficiary changes, your partner passes away or if your specified assets change.

Should I make a Will?

Yes. It is essential to make a Will if you are concerned about who will receive your assets and belongings after you die. It is particularly important to make a Will if you have a family or other dependants.

Even if you are married with dependants you need a Will. If husband and wife are killed together, for instance in a motor accident, the older person is normally presumed to have died first. If you were the younger person, you might have inherited assets from your spouse – even though you were by then dead – but if you had not made a Will your assets would be distributed under a rigid formula regardless of what you might wish.

What is a Will?

A Will is a legal document that names the people you want to receive the property and possessions you own at the date of your death. These people are known as your beneficiaries.

Your property and possessions include everything you own: your home, land, car, money in bank accounts, insurance policies, shares, jewellery, pictures, furniture, and so on. Making a Will is the only way you can ensure your assets will be distributed in the way you want after you die.

What is a "valid" Will?

A valid Will is one accepted by a court and put into effect by a Grant of Probate. To be valid your Will must be:

In writing – handwritten, typed or printed;
Signed – ideally your signature should be at the end of the Will; Witnessed – two witnesses must be present when you sign your Will or acknowledge it and they, too, must sign in your presence, but they do not have to be present together at the time they sign.

If your Will is not made in this manner it may not be enforceable; the court has a discretion to Grant or not Grant Probate (confirm that the Will is valid) and your property could be disposed of as if you had not made a Will. In exercising its discretion, the court needs to be satisfied that the document sets out how you want your assets to be distributed.

Can I make a Will myself?

You can make a Will yourself if you wish; printed Will forms are available from stationers. There is no requirement that a Solicitor draft a Will. However, it is not in your best interests to draft your Will yourself. There have been very many cases where homemade Wills were either unclear, not properly drawn up or caused an unwanted tax liability. Many of these cases end up in court and carry on for years, causing distress and perhaps hardship to the family of the deceased. In general, Solicitors do not charge a large fee for making a Will, and since it is one of the most important legal documents you will ever make, it is false economy to try to do it without skilled professional advice.

How can I make sure my wishes are carried out?

You should appoint in your Will a person called an Executor to handle your affairs after you die. If you wish, you can name more than one person to act as Executor. You can choose anyone to be your Executor – your spouse, relative, a friend, your Solicitor – but you should first ask them if they are prepared to take on the task and confirm with them that they have been appointed.

Being an Executor is a very responsible position. The Executor has to obtain Probate of the Will and pay any taxes, debts or expenses before finally distributing the balance to the beneficiaries named in your Will. An Executor who is not a beneficiary may apply to the court for payment for his or her work as Executor.

What happens if I don't make a Will?

The legal procedures are more complicated and time-consuming and may cause expense, worry and even hardship to your family.

The law provides a formula which sets out who is entitled to the property of a deceased person who has not left a Will. The formula may not distribute your assets in the way you would have wanted.

It is not true that the Government takes a deceased person's property if there is no Will. This can happen only in exceptional cases where there are no close relatives or persons in a family relationship surviving the deceased.

Can I alter my Will if I change my mind?

Yes. You are free to alter your Will at any time. If your circumstances change, you can and should alter your Will. However, you cannot simply make an alteration by, for instance, crossing something out on the original Will and writing in your new wishes.

If the alterations are minor, you can make a codicil (this is a separate document in which you change a provision in your Will) but it is usually better to make an entirely new Will unless the change is a very simple one. A codicil must be signed in the presence of two witnesses, in the same way as when you make your Will.

What if I marry or divorce?

If you made a Will before you married, it will automatically be revoked when you marry, unless it was made with a particular marriage in mind, or stated in general terms that it was made in contemplation of marriage. So if you marry, it is more than likely you will need to make a new Will.

Any gift or appointment (e.g. as an Executor or guardian) in favour of a former spouse in your Will is automatically revoked when a divorce decree becomes absolute or a decree of nullity is made. It is in your best interest to make a new Will or codicil if you are divorced or have been separated for an extended period.

Defacto or same sex relationship partners can apply to the court in the case of an intestacy but they must prove their relationship, often a costly legal process.

Can I leave my assets to anyone?

Yes, but you should make proper provision for your spouse and children, including ex-nuptial children. If you do not, they could take proceedings to obtain provision depending on their needs.

Where should I keep my Will?

Keep your Will in a safe place. It is preferable not to keep the Will yourself in case it is mislaid. Solicitors hold Wills on behalf of clients, usually at no charge. You should keep a copy of your Will and note on it where the original is kept.

It is advisable to tell your Executor where your Will is kept. If you want to give personal instructions that you do not want to appear in your Will, you can simply leave your Executor a letter of instructions.

How Will we help you?

We will draw up a Will that is in your interest because we:
Make sure your Will is valid – that is, properly drawn, signed and witnessed;

Make sure your wishes are clearly expressed in the Will;
Advise you regarding adequate provision for your spouse and children, or for any former spouse or any dependants;
Advise you as to any possible liability for capital gains tax which might result from provisions you intend to make in your Will; Advise you on choosing an Executor and on the Executor's right to be paid for his or her time and trouble in administering your Estate;
Advise you on the best way to arrange your affairs;
Keep the Will in a safe place, usually without charge

Important, preliminary decisions must be made in preparation for completion of your Will:

Who will act as your Estate's Executor and Alternate Executor?
How do you wish the assets of your Estate to be distributed or divided?
Are there any important items or heirlooms you wish to make special provision for?
Do you have any assets that will require specific planning or management?
If you have children, who will be named as their guardian(s)?
If minors may become beneficiaries under your Will, at what age(s) do you wish that your bequests be Granted to them?

It will be important to give thought to these issues in order to provide comprehensive instruction to your lawyer, so that your Will can be completed. Your lawyer will also be able to provide advice and guidance as to these concerns when you meet to discuss your Will.

Do I really need a Will? What is an Intestacy? What happens if I never complete a Will?

In NSW, if you die without a valid, complete Will, an Intestacy is created, and the distribution of your Estate will be governed by the Supreme Court.

This Court provides for a complicated mechanism of determining which of your family members will inherit specified portions of your Estate, depending on the amount you leave and the closeness of your relatives' familial relationship to you.