Making a Valid Will
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a. What is a Will?A Will is a legal document setting out how your estate’s assets will be distributed after you die.
By preparing a Will you can say how the assets in your estate will be gifted to your family, friends or anyone else you wish to leave a gift to.
A Will provides you with a level of comfort that your assets will be left to the people you wish to have them after you pass away (so long as you have left a valid Will and the Will is not challenged or subject to an application for family provision, your family will be bound by the terms of your Will).
A Will is particularly important if you have family or others who are financially dependent on you because it allows you to the opportunity to have them taken care of in the unfortunate event you pass away.
Writing a Will in NSW or writing a Will in Australia is an important thing to think about. You may need more than one Will if your assets are located in various Australian states or across various countries. You may prepare a Will that deals with all your assets wherever located, however you may need to obtain probate in more than one jurisdiction to ensure that the assets in the different jurisdictions can be administered by the executor in accordance with your Will.
b. Why do I need a Will?A Will is important primarily because if you die without a Will, you will be presumed to have died intestate.
If you die intestate, your estate will pass to your next of kin according to a special statutory order – typically your spouse or partner, children, parents, or other relatives.
In NSW, when you die without a Will, what happens to your estate is determined by the provisions of the Succession Act 2006 NSW.
While dying without a Will won’t necessarily mean your assets go to the Government, it may considerably complicate things and increase the costs of establishing who are the rightful beneficiaries to your estate. Such costs are generally paid from your estate.
The most obvious disadvantage of dying without a Will (intestate) is that you have no control over the distribution of your estate. If you die without a Will your estate will be distributed to your nearest blood relatives irrespective of whether they were close to you or not.
This also occurs when you leave a Will that only distributes part of your estate (partially intestate) or where a Will is made but for some reason is deemed ineffective.
Where a person has died intestate, an application for Letters of Administration can be made to allow a person, or group of people, the right to legally administer your estate. An estate may include any bank accounts, shares, property and other assets that belonged to you.
It is important to note that a family provision claim by an eligible person can still be made against your estate whether or not you had a valid Will in place or not.
The Succession Act 2006 (NSW) also sets out the order of relatives who can inherit your estate if you have died intestate. The order of relatives can be summarised as follows:
1. Where you leave a spouse or a spouse and a child from the relationship: the spouse is entitled to the whole of the estate.2. Where you left a spouse and child from a previous relationship, the spouse is entitled to receive:a. the personal effects (property) of the deceased;b. a statutory legacy (gift) of $350,000.00 adjusted by the Consumer Price Index, plus interest on this amount if not paid within 1 year from the date of deathc. half of the remainder of the estate.Your spouse would also have a right to choose to acquire property from your estate.
All of your children, including children whether they are from a previous relationship or from your spouse, are entitled to equal shares of the other half of the remainder of your estate. Children who are not legally your children, for example step-children, are excluded.
3. Where you left more than one spouse, for example, you were married and had a de-facto spouse or you had a de-facto spouse and a former de-facto spouse at the time of death: The spouses are entitled to equal shares of the estate.
4. Where you left children only: The children are entitled to equal shares of the whole of your estate. This includes adopted children, but not step-children. Where a child of the deceased has already died leaving children (grandchildren of the deceased), those grandchildren are entitled to that person’s share of your estate.
5. Where you left no spouse or children: Your parents are entitled to equal shares of the whole of your estate.
6. Where you left no spouse, children or parents: Your full and half blood brothers and sisters are entitled to equal shares of the whole of your estate.
7. Where you left no spouse, children, parents, brothers or sisters: Your grandparents are entitled to equal shares of the whole of your estate.
8. Where you left no spouse, children, parents, brothers, sisters or grandparents: Your full and half-blood aunts and uncles are entitled to equal shares of the whole of your estate.
9. Where you left no spouse, children, parents, brothers, sisters, grandparents, aunts or uncles: Your first cousins are entitled to equal shares of whole of your estate.
10. Where you left no spouse, children, parents, brothers, sisters, grandparents, aunts, uncles or cousins: The NSW State government is entitled to the whole of your estate.
c. When should I write a Will?Now. You never know when something unfortunate may happen to you so the sooner you create a valid Will, the better.
As you progress through life, various life events may make you contemplate creating a Will or updating your Will. You may wish to consider making or updating your Will around the time of the following life events:1. Reaching 18 years of age (although there are some limited cases where a minor can also make a Will);2. Getting married or re-married;3. Separating or divorcing from your partner;4. Entering a de-facto relationship;5. Buying real estate or another significant asset;6. Starting a business.
d. What you needIn order for a Will to be valid, it requires the following:1. It must be in writing and can be handwritten, or typed;2. It must be signed by you;3. Your signature on your Will must be witnesses by two other people, who must also sign your Will. These witnesses should not be taking gifts from your estate.
In order for the Will to be valid, you must also have ‘testamentary capacity’, meaning you understood the legal effect of your Will and your ability to make rational decisions was not affected by mental impairment. You will need to demonstrate that you are aware of the extent of your estate, the gifts that you intend to make and to whom and you acknowledge if you have a moral obligation to make provision for someone in your will.
Types of Wille. What is a Mirror Will?Mirror Wills are Wills where multiple people essentially leave assets to the same beneficiaries.
A common example of this is a married couple or a de-facto couple who share the same wishes as to how their assets will be divided after they die, for example, leaving all of their estates to their children.
Whilst a couple may prepare Mirror Wills, such Wills can be changed or revoked at any stage, even after the death of one of the Will-makers. One party is not required to give any notice to the other Will-maker of changes they make to their Will.
f. What is the difference between a Living Will and a Will?A living Will, also known as an ‘Advanced Care Directive’, is a legal document that dictates your future medical treatment in circumstances where something unexpected were to happen to you, for example, becoming seriously ill or injured and you are no longer able to provide your consent concerning your healthcare and medical treatment.
In order to make a valid Living Will in NSW, it must:1. be made voluntarily without coercion by another adult; 2. be made whilst you had capacity;3. be specific enough so that it applies to a situation that arises.
In NSW a Living Will can be spoken or written, however a signed and written Living Will is recommended.
g. Do I need a Will if I have a Power of Attorney?Yes. A Will and a Power of Attorney each have a different purpose. A Will appoints a person to administer the assets in your estate in accordance with your wishes after you die.
In contrast, a Power of Attorney appoints one or more persons to carry out your wishes or to otherwise make decision for you while you are still alive.
Further, a Power of Attorney is only in effect until you die, whereas your Will comes into effect after you die.
h. Do I need a special Will if I’m in a same-sex relationship?You do not need a special Will if you are in a same-sex relationship. The inheritance rights to the estate of a person in a same sex de-facto relationship or a same sex married relationship are the same as a heterosexual person in a married or de-facto relationship.The important thing to note is that in NSW, a Will will not be revoked upon you entering a marriage and prior to that marriage you had a valid Will in place. As such, a gift in a previous Will to a former spouse or de-facto partner will continue to be valid until you update your Will.
Write a Will in Australia by yourselfi. What to put in a Will Prior to writing a Will in Australia, you should first consider the following:
1. Whether you have any prior wills that will need to be revoked;2. Determining what your assets and liabilities are;3. Who will be your Executor/s to administer your estate;4. What specific gifts you wish to make and to whom;5. Are there person that you have a moral obligation to make a provision for from your estate;6. Who will receive any residue of your estate, being the assets that you have not specifically gifted to anyone;7. Whether you have any preference on burial or cremation;8. Whether you wish to establish any trusts;9. Any specific powers you wish for your Executor/s to have in administering your estate.
Assets and liabilities to consider include the following:1. Your home;2. motor vehicles;3. investment properties;4. shares;5. bank savings and term deposits;6. any heirlooms or valuable possessions or possessions with sentimental value;7. superannuation policies (although it is important to consider whether you have made a binding death benefit nomination with your superannuation providers and to consider the particular Superannuation fund’s trust deed as to how your benefit may be distributed at the fund’s discretion).8. any mortgages or loans linked to any particular asset.
What to include in a Will depends on your particular wishes and your particular circumstances as long as the Will meets the formal requirements for it to be a valid Will.
There a various examples of Wills in Australia and wording of a Will examples available on the internet.
j. Ensure your details are accurate and up-to-dateYour Will should be up to date and current and you should ensure your full name is correctly written in your Will and your current address is also noted in your Will.
It is important that you consider updating your will if there have been significant changes to your assets, you have changed your name or otherwise wish to make different gifts to different people than what is referred to in your former Will.
k. Explicitly state your mental stateIn your Will, you should clearly state that you are of “sound mind”, and having sound mind, you revoke any and all former Wills.
l. Assign your Executor/s and beneficiariesIn your Will you will need to appoint one or more Executor/s. Your Executor/s are the person/s you choose to administer your estate after you die and who ensure your estate is administered in accordance with your wishes.
If over time your relationship with your Executor/s change or your Executor/s predecease you, it is important to update your Will so that your Will is current.
m. Ensure your Will is properly signed and witnessedOnce the Will is prepared and you are happy that the gifts made in your Will are in accordance with your wishes, you will need to:1. Sign and date your Will in the presence of two witnesses; and
2. Make sure that you and the witnesses sign the bottom of each page of the will and on the last page of the Will;
3. Have your witnesses write their full name and address beneath their signature on the last page of the will.
How To Make a Will in Australia with a SolicitorA solicitor can help you streamline the process of making your Will and also assist you with making a valid Will.
Usually, you will conference with a lawyer, who will obtain your instructions as to the following:1. Whether you have any prior Wills that will need to be revoked;2. Your assets and liabilities;3. Who you wish to be appointed as your Executor/s to administer your estate;4. What specific gifts you wish to make and to whom;5. Who will receive the residue of your estate, being the assets that you have not specifically gifted to anyone;6. Whether you have any preference on burial or cremation;7. Whether you wish to establish any trusts;8. If there is a need to make provision in the Will for certain persons;9. Any specific powers you wish for your Executor/s and of applicable, your Trustee/s to have in administering your estate.
Your lawyer will then draft your Will. Once the Will is drafted you will again meet with the lawyer to go through your Will and ensure that everything in your Will is correct. Any amendments you might have can also be addressed and made by the lawyer.
The Lawyer will also assist you with witnessing your signature on your Will and for others to witness your Will in order to make a valid Will.
The lawyer will usually give you multiple copies of your Will so that you can provide to your Executor/s and if you wish, hold the Original Will in the lawyer’s files for safekeeping.
The Pros and Cons of Both Options?Drafting your own Will, will depend on a number of factors. Ask yourself:
1. Can you write your own Will?2. Are you confident to make a Will in Australia and ensure you meet the legal requirements to create a Will?3. Whilst you may have an Australian Will template or a Self Will Kit, do you require specific legal advice about what specific gifts you can make or advice about potential capital gains tax or on any potential claims that might be made by certain relatives on your estate?4. Do you think that you will be able to make a valid Will?
If you do write your own Will, you ultimately save costs as you avoid the need to pay a lawyer’s professional fee to draft a Will for you.
However, whilst it may be attractive to save some money, making a Will by yourself may result in large cost consequences and is generally not advisable. For example, if the Will that you prepare does not meet all the legal requirements, your Will may not be legally valid.
You also run the risk of your Will being challenged after you die or the risk that your Will is found to not be a legally valid Will.
The overriding benefit of having a lawyer assist you in preparing your Will is the ability to receive advice on the following:1. Anyone that may challenge your Will after you die based on your instructions;2. Anyone that may make a claim for Family Provision against your estate after you die;3. Any beneficiaries you should consider leaving a gift to or may have forgotten to gift to in minimising the potential for challenges to your estate;4. Advise on establishing trusts for specific beneficiaries if required;5. Potential capital gains tax from gifts you are making;6. other estate planning advice;7. Safely store your Will so that your beneficiaries know where it is.
Making Changesn. Can I change my Will after I have signed it?Yes. In NSW, there is no limit on how many times you can change or update your Will. You can change or update your Will at any time up until your death, subject to you having testamentary capacity.
The clearest and most advisable way to update your Will is to make a fresh Will and revoke any and all former Wills.
However, if you wish to simply make a minor change to your Will, such as adding a gift to a beneficiary or updating your Executor/s, you can simply create a Codicil.
A Codicil is a document used to make a minor change to your most current Will. A codicil should refer specifically to the Will it is referring to and state the change. The Codicil should be annexed to your Will and also kept in a safe place. If your original will is safely stored with your lawyer, then you should provide the Codicil to your Lawyer or instruct your lawyer to prepare the Codicil.
You should generally limit how many codicils you annex to your Will. Where there are a number of Codicils, it is advised that you simply create a new and updated Will that takes into account all the changes and is then current and reflects your testamentary wishes.
o. Can I change my Will by handwriting changes and initialling?No. if you need to make changes to your Will you should consider making a fresh and updated Will (or a Codicil if there is only a minor change to be made that can be annexed to your Will).
You should avoid making any alterations to your original Will by hand to limit the possibility of the Will being challenged or otherwise being declared invalid.
p. When do I need to amend my Will?You should consider amending or updating your Will when your circumstances change. Consider amending or updating your will if:
1. You enter a marriage or a de-facto relationship;2. You separate from your spouse or de-facto partner;3. You divorce your spouse;4. You have a child or further children;5. You have acquired significant assets, such as purchase of a property;6. You dispose of significant assets or an asset that is the subject of a specific gift to a beneficiary named in your Will;7. You want to make additional specific gifts to a current or new beneficiary;8. You want to set up a trust for your children or a person dependant on you during your life or someone else;9. Your Executor/s predecease you;10. Your beneficiary/ies named in your Will predecease you;11. Your wishes about existing gifts to existing beneficiaries change and you wish to amend the gifts to your beneficiaries.
q. Is my Will still valid if I get married or re-married?In NSW, your Will is revoked upon you marrying, except for the following which are not revoked by you marrying:
1. Any gift in your Will to the person you are married to at the time of your death;2. Any appointment in your Will as your executor, trustee or guardian, of the person you are married to at the time of your death;3. Any Will made in exercising a power of appointment where the property would not pass to the executor, administrator or NSW Trustee and Guardian if the power of appointment was not exercised.
A Will you make in contemplation of entering a marriage, whether or not expressed as such in your Will, will not be revoked upon you entering the marriage.
Definitely make a new Will shortly after you marry, divorce, or have been separated for an extended period.
The importance of this is to avoid circumstances where for example, you are recently married and are deemed to have died intestate upon your death as a result of you having passed away shortly after the wedding having not made a new and updated Will.
r. Is my Will still valid if I get divorced?It is important to note that where you have separated from your spouse, but remain married to that spouse, such spouse or ex-spouse will be considered an eligible person in NSW to make an application for Family Provision against your estate in circumstances where they feel they have not been adequately provided for in your Will.
For example, Courts in NSW have found in favour of a former wife of a deceased person in her application against the estate, despite her having separated from the deceased 25 years earlier and having no ongoing dependence on the deceased.
However, unless you made specific contrary intentions clear in your Will, where you divorce your former spouse, this will cancel any gift you made to your former spouse under your Will. It will also cancel any appointment of that former spouse as your Executor, Trustee or Guardian under your Will, save for their appointment as trustee for any property you leave under your Will to any children.
You should always make a new will if you marry, divorce, or if you have been separated for a long time.
In Australia, you are required to be separated for 12 months before you can finalise your Divorce. As such, it is recommended that you create a new Will if you separate and the separation is permanent.
After You Dies. What happens after I die?Your executor will usually review your Will and seek to make an application for Probate, so that they have legal authority to administer the assets comprised of your estate in accordance with your wishes.
Most asset holders such as banks, insurance companies and superannuation funds, require a Grant of Probate or Letters of Administration before they proceed to releasing or transferring assets to the Executor/s or Administrator/s.
The Grant of Probate or Letters of Administration is the legal proof required by holders of your assets before they deal with your Executor/s or Administrator/s in relation to your assets.
t. What is probate?Probate is a Court Order granting your Executor/s approval to distribute your estate’s assets to your beneficiaries in accordance with your last Will.
It is important your Executor/s ensure the assets are distributed according to your Will or if there is no Will, in accordance with the law.
The Supreme Court in each state and territory of Australia supervises the process of administering and distributing a deceased’s estates.
The court will appoint an Executor/s if you haven’t nominated one.
All Grants of Probate are stored, along with your corresponding Will, at the Supreme Court. These are public documents.
It is important to remember that Probate granted in NSW only authorises your Executor/s to deal with your assets held in NSW. Where you held assets in another Australian state or territory, or overseas, a Reseal of Probate or a new Grant may be required to deal with your assets held in those jurisdictions.
u. What happens after probate?Once Probate has been granted, management of your assets can legally be transferred to your Executor/s who can then proceed to the administration and distribution of your estate in accordance with your Will.
v. How will my assets be distributed?Your Executor/s will distribute your estate in accordance with your wishes outlined in your Will.
Usually, your Executor/s will firstly assess the assets and liabilities of the estate and then proceed to where possible distribute any specific gifts you made to specific beneficiaries, where those assets are still in existence.
After distributing all specific gifts, your Executor/s will then undertake any actions required to convert any remaining assets to cash or otherwise arrange to transfer to your residual beneficiary/ies, any remaining assets, after payment of any liabilities example, loans, credit card debts, outstanding taxes.
w. How long does the whole process take?A Probate applicant is usually made within 6 months from the date of your death, otherwise your executor will need to provide the Court with an explanation of any delay.
Once Probate is granted, your estate can be distributed in accordance with your wishes outlined in your Will.
Where there is no legal challenge to your Will, your whole estate can usually be administered within about 12 months of the date of your death. A lot of the time is spent corresponding with the relevant asset holders, such as banks and superannuation holders to call in the assets to the estate.
However, where there is a legal challenge to your estate, for example, an eligible person makes a family provision claim on your Estate, the process will generally take longer. Most Will contests settle or resolve at a mediation between your Executor/s and the person/s making a claim on your estate. Where a matter does not resolve, the contest will usually proceed to a hearing and a decision made by a Judge.
x. Can my Will be contested? In NSW, if a person considers your Will and believes that they have been unfairly left out of the Will or, that they were not gifted as may have been expected, they may contest your Will, by filing a Family Provision claim.
A Family Provision claim is an application filed with the Supreme Court of NSW for a share or increased share from the estate of a deceased person.
A n eligible person can make a family provision claim on your estate. Section 57(1) of the Succession Act 2006 (NSW) defines the following as being eligible persons:
● Your spouse (wife or husband) at the time of your death;● A person in a de-facto relationship with you at the time of your death (this includes same sex relationships);● Your child;● Your former spouse;● A grandchild or member of your household who was at some time wholly or partly dependent on you;● A person with whom you were in a close personal relationship at the time of your death (two adults that live together and provide each other with domestic support and personal care, either without charge or as a volunteer as part of a charitable or similar type of organisation);
A Family Provision claim may be made in NSW, if either:
1. There is real estate you own in NSW; and/or2. You were living permanently in NSW at the date of your death and owned property anywhere.In NSW, a Family Provision claim must usually be made within 12 months from the date of your death, unless that applicant can satisfy the Court that there are factors warranting an extension of time to make the application.
Pursuant to section 59 of the Succession Act 2006 (NSW), at the time that a Court is considering an application brought before it for Provision, the Court is required to make such provision as it considers ought to be made for the maintenance, education or advancement in life of an eligible person, having regard to the circumstances at the time of such application.
y. Can my Will be found invalid? Your will can be found invalid or requires court intervention in various circumstances. These can include:
1. You did not meet the legal requirements to make a valid Will, e.g. your Will was not signed or correctly witnessed;2. You did not clearly state in your Will that you revoke any and all former Wills;3. Your witnesses in your Will are beneficiaries in your Will;4. You lacked capacity at the time you prepared your Will;5. Your Executor/s predeceased you or is otherwise unable or unwilling to act as your Executor/s;6. You did not make the Will freely and voluntarily, and were coerced or subject to undue influence in making the Will;7. Your Will was the subject of a forgery;8. You were tricked or deceived into signing a Will.
Our Recommendation The material included in this article is designed and intended to provide general information in summary on NSW Wills, which is current at the time of publication, for general informational purposes only. The material does not apply to all jurisdictions.This article does not constitute legal advice. This Article is not intended to be a substitute for legal advice you obtain from a lawyer and as such, you should not rely upon this article as legal advice or a substitute for legal advice.Preparing a legal Will can be overwhelming for some. A solicitor can assist and guide you to meet the legal requirements of making a valid will. Contact our office to speak with one of our lawyers who can help guide you through the process and assist you to draft your Will and help you avoid or minimise the potential for your Will to be challenged after you die.
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