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Making a Will
A will is a written document which sets out how a person wants their
assets divided after their death. Everyone over eighteen years should
consider having a will. It is the only way to ensure that your estate
is distributed in the way you would like. A will makes it easier for
the beneficiaries of an estate to gain access to funds in an estate
particularly in small estates where probate may not be required. |
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A will must:
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be in writing, either typed or
handwritten;
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give the appearance on its face that the
will-maker (or "testator") intended by their signature to give
effect to the will;
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be signed by the will-maker in the presence of two witnesses present at the same
time when witnessing the will.
It is recommended that
a beneficiary or the spouse of a beneficiary under a will should not
witness the will as they may lose their entitlement under the will
if they do so. |
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Executors
When you give instructions to make a will you will need to decide whom
you wish to be the executor of your estate. The person that you name to
be your executor must be capable of taking the responsibility of
finding your most recent will, instructing solicitors to obtain a grant
of probate, liquidating the estate assets and distributing the assets
of the estate to the beneficiaries. No special skills are required as
the majority of the work is done by executors under advice from
solicitors. Normally a husband and a wife will appoint one another as
executors. Often people appoint their adult children as their executors
if there are circumstances where their spouse is unable or unwilling to
act. |
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Gifts to Beneficiaries
The second aspect of will making is for the will maker to decide which
assets go to which beneficiaries. You may make any number of specific
gifts. For example jewelry, valuables, antiques or collections may be
left to particular people. There may be specific sums of money that you
may wish to be given to particular people. In the alternative, wills
are often drafted so that the entire estate is given to the executor to
hold on trust to divide equally (or in specified proportions) to a
class of beneficiaries or to a named group of people. Gifts can be
given with conditions such that the beneficiary does not receive a gift
until the condition is met. The most common condition is a minimum age. |
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In any case it is most important that you do not attempt to give
through your will property that you don't own. For example jointly
owned property such as real estate held by joint tenants, shares in
joint names and joint bank accounts will automatically pass to the
surviving owner regardless of the terms of the deceased will.
Accordingly it is pointless to attempt to make new interest in jointly
held assets the subject of testamentary gifts. Superannuation and life
insurance commonly has nominated beneficiaries and those investments
will not form part of your estate. Rather, on your passing the proceeds
of the insurance or superannuation will pass directly to the nominated
beneficiaries. Similarly assets held by your family trust or
discretionary trust will not pass by way of your will. You may hold the
shares of any company trustee, but otherwise your trust will continue
to operate in accordance with the terms of the trust deed. |
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It is recommended that your will be drafted to include
"substitution gifts" these are provisions
which take into account that your "primary beneficiary" may predecease you. Wills often
include a provision that if a primary beneficiary predeceases you then their gift is to be
divided between those of their children who survive you. Some will makers like to name more
distant friends and relatives and charities as substitute beneficiaries. |
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Vesting Age of Beneficiaries
If your will creates a potential of you having beneficiaries who have
not yet attained the age of eighteen years then it will be necessary
for you to specify a "vesting age". Many will makers prefer that their
children not receive their gifts under the will until they have
attained the age of twenty one (21) years, twenty five (25) years or
sometimes older. If your will creates potential for minor beneficiaries
then we would recommend that your will include a clause extending the
executors powers in order to give the executors a discretion to advance
part of the minor beneficiaries entitlement to them if the beneficiary
falls on hard times. It is generally prudent to grant to your executor
a range of additional powers above and beyond the powers that an
executor has at common law. |
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Testamentary Guardians
You may wish to include a provision in your Will naming the person that
you would wish to be the guardian of any of your children that have not
attained the age of eighteen years at the date of your death. Please
note that a provision naming guardians in a Will is only a "wish" and
accordingly cannot be enforced at law. In Australia the Family Court of
Australia ultimately decides questions of guardianship of children. |
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Disposal of your Body
You may wish to include in your will provisions relating to disposal of
your body. You may wish to specify cremation or burial. You may wish to
include an indication that you have a prepaid funeral plan. You may
also wish to indicate a particular type of funeral ceremony or a
particular cemetery. |
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Outstanding Loans
When making your will you should consider whether you wish to forgive any loans that are
owed to you, otherwise all such loans will become assets of the estate. Will makers
sometimes include terms in their will which have the effect of evening up their financial
affairs with their children if some of those children have received significant gifts
prior to the will makers death. |
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Special consideration should be given to your will if you or your spouse (or partner) have
children from previous relationships. |
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Changing a Will
A will remains in force until the will-maker formally changes it by
making a "codicil" or by making a new will. Handwritten amendments have
no effect once a will has been signed. The will-maker may only make
amendments to the will before signing. In such cases the will- maker
and the witnesses must sign or initial in the margin or near the
alteration. If this is not done the Court may assume that the
alteration was made after the will was signed and the amendment may not
be effective. |
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Revoking or Canceling a Will
Your will will be revoked by marriage, unless it was expressed to have been made in
contemplation of that marriage. If you marry after making a will that was not made in
anticipation of the marriage, you should make a new will. |
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A divorce will not revoke the will but it will invalidate any gift to your former spouse
and the appointment of that spouse as an executor, trustee or guardian (unless the Court
is satisfied that you did not intend the divorce to revoke the gift or appointments). |
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There are several ways of revoking your will which include:
- making a new will;
- destroying the will with the intention of
revoking it;
- writing on or amend the will in some way that will satisfy the
Court that you intended to revoke it.
If any of these options are used
the will-maker will die "intestate" unless a new will is made. |
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Challenging a Will
A will may be contested on the basis that the will maker did not intend the document in
question to be their last will and testament. Normally wills can only be contested on the
basis that they are invalid because the will maker made a later will, the will maker did
not have the mental capacity to make a will, the will maker's signature was forged or parts
of the will were changed after it was signed, the will maker was tricked or pressured into
signing the will, or the will was revoked. |
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In any such cases it is necessary for the person contesting the will to have sufficient
evidence in a form acceptable by the Court, and sufficient to persuade the Court to make
relevant orders. |
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Prior to an application being lodged with the Court to contest a will
it is almost invariably necessary to obtain a barrister's advice as to
whether the evidence is sufficient. |
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Family Provision Act Claims
Dependents of a deceased person who feel that they were not properly provided for under
the deceased's will may make application to the Court under the Family Provision Act. The
agreed person can apply to the Court for provision from the will regardless of whether they
were mentioned in it or not. |
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Such application must be made within eighteen (18) months at the date of death. In certain
circumstances the Court will approve applications under the Act outside the eighteen (18)
month period. |
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The Act specifies classes of persons who may bring an application. Eligible persons are
generally specified family members or dependents. |
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In order to make a claim under the Family Provisions Act the applicant
must provide evidence of their needs and that they were not properly
provided for in the will. The Court may take into account many factors
including the character and conduct of the applicant during the
deceased's life, contributions that the applicant made to the
deceased's property and well being during the deceased's life and any
other factors that the Court regards as relevant. |
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In certain circumstances the Court may be prepared to make orders in respect of property of
the deceased's that the deceased disposed of prior to their death. However to get those
sorts of orders the applicant would have to provide sufficient evidence to show that the
deceased disposed of that property specifically with the intention of defeating a Family
Provision Act claim. |
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Generally claims under the Family Provision Act have to be made without delay in order to
avoid the estate being distributed to beneficiaries who may deal with it in a way that
makes it not recoverable. |
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Procedure following Death
If you are named as executor in a will then immediately after the death of the testator
you will be responsible for organising the funeral, finding the deceased's will and
determining whether it is necessary to apply for Probate. |
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You must do what ever you can to secure all of the deceased's assets to ensure that they
are not taken by people who think they have the right to them. |
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Generally the funeral director will order a Death Certificate from the
Registry of Birth Deaths & Marriages. The Death Certificate is
normally sent to the executor within three (3) weeks of the funeral. |
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The question of whether Probate needs to be obtained is determined by
considering the nature of the assets. If there is any real estate in
the deceased's sole name then almost certainly Probate will be
required. Essentially, the Grant of Probate is a declaration by the
Supreme Court that the will is valid and that the executor is entitled
to commence dealing with the estate assets. |
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An application for a Grant of Probate involves publication of a
relevant notice in a newspaper circulated in the area in which the
deceased lived, identification of all of the deceased's assets,
preparation of the proper documents making the application for Probate
and lodgment of the probate application at the Supreme Court together
with the appropriate filing fee. |
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Estate assets must not be dealt with until Probate is granted, except that some banks may
be prepared to release to the executor sufficient money to pay funeral expenses on
production of the original death certificate. |
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Failure to Leave a Will
When a person dies without leaving a will they are said to have died "intestate". |
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If a person dies intestate then an interested person (normally the next
of kin) will need to determine whether an application needs to be made
in the Supreme Court for "Letters of Administration". The principals
and procedures are similar to the process of applying for Probate. |
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However the identification of the beneficiary of the estate are
determined by reference to the "rules of intestacy". The rules of
intestacy are in effect a formula for determining who receives the
estate. If application of the rules results in no living beneficiaries
then the estate is said to be "bona vacantia" (or "for the good of no
one"). In those circumstances the estate vests with the government. |
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Interpreting Wills
Occasionally a person will die leaving a will that contains ambiguities. If necessary the
executor of any other interested party may make application to the Supreme Court for orders
as to what the clauses mean. The applicant and other interested persons may provide the
Court with evidence as to the interpretation to be given to the document. The evidence must
be of a particular standard if it is to be admissible. |
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Procedure following a grant of probate
Once the executor of the will has obtained a Grant of Probate (or an
interested person has obtained Letters of Administration) the executor
(or the administrator as the case may be) has the task of putting into
effect the will makers intentions as expressed in the will. Generally
this means liquidating bank accounts, transferring shares and real
estate and distributing chattels. In any case, beneficiaries don't have
the right to have assets of the estate until the Court has granted
Probate and an appropriate advertisement is published in the relevant
newspaper. There is also argument that an executor should not
distribute to beneficiaries until an "executor's year has passed". |
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The executor (or administrator) is responsible for applying estate monies to payment of the
deceased's death and testamentary expenses. These payments must be made before any
beneficiaries receive their gifts. |
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The executor or administrator is also responsible for ensuring that
final tax returns are done, that the deceased's name is removed from
the electoral role, that all estate debts are paid and all entitlements
under the will transferred as appropriate. |
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An executor of a will may be entitled to payment for their pains and
trouble in administering the estate. |
