Simple Wills

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 lawyers 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 lawyers. 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.

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 jewellery, 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.

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.

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.

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.

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.

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.

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 maker’s death.

Special consideration should be given to your will if you or your spouse (or partner) have children from previous relationships.

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.

Your will can 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.

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).

There are several ways of revoking your will which include:

1. making a new will;
2. destroying the will with the intention of revoking it;
3. writing on or amending 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.

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.

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.

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.

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 Succession Act. The agreed person can apply to the Court for provision from the will regardless of whether they were mentioned in it or not.

Such application must be made within twelve (12) months at the date of death. In certain circumstances the Court will approve applications under the Act outside the twelve (12) month period.

The Act specifies classes of persons who may bring an application. Eligible persons are generally specified family members or dependents.

In order to make a claim under the Succession 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.

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 Succession Act claim.

Generally claims under the Succession 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.

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.

You must do whatever 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.

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.

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.

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 lodgement of the probate application at the Supreme Court together with the appropriate filing fee.

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.

When a person dies without leaving a will they are said to have died "intestate".

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.

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.

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.

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 maker’s 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".

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.

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.

An executor of a will may be entitled to payment for their pains and trouble in administering the estate.