By Neville Par­sons

A Will is a doc­u­ment that states how someone’s estate (i.e. assets, pos­ses­sions) will be dis­trib­uted after they die. With­out a Will, you have no way of ensur­ing that when you die, your estate will be dis­trib­uted in line with your wish­es.

Not hav­ing a Will in place, means that no one knows who you want­ed as your ben­e­fi­cia­ries, who you want­ed as your execu­tor (the per­son who admin­is­ters your Will), or how you want­ed your assets dis­trib­uted. It is often quot­ed that up to 45 per cent of Aus­tralians do not have a valid Will.

Your Will is prob­a­bly one of the most if not the most impor­tant doc­u­ment that you will ever sign. As a result, it is rec­om­mend­ed that your Will is cur­rent, reflects your wish­es and avoids any legal pit­falls.

What hap­pens if you die with­out a Will?

If you die with­out a Will, you die intes­tate; mean­ing, your assets will be dis­trib­uted in accor­dance with a statu­to­ry for­mu­la.

Cer­tain fam­i­ly mem­bers will receive a defined per­cent­age of your assets despite what you may have wished, and if your only liv­ing rel­a­tives are dis­tant cousins, your estate could be giv­en to the state.

Dying intes­tate can cause sig­nif­i­cant finan­cial and emo­tion­al stress on your spouse and fam­i­ly.  The sit­u­a­tion can be even more stress­ful for your defac­to, if you are in a de fac­to rela­tion­ship, as your defac­to will need to show evi­dence that the rela­tion­ship exist­ed.

How do I ensure my Will is valid?

Your lawyer will ensure your Will is valid, and fol­lows the required cri­te­ria:

  • You must be over 18 years of age (unless you are mar­ried)
  • The Will must be in writ­ing — hand­writ­ten, typed or print­ed
  • You must sign the Will and have two or more wit­ness­es (ben­e­fi­cia­ries should not be a wit­ness)
  • You must have “tes­ta­men­tary capac­i­ty” mean­ing:
    • You know the legal effect of a Will
    • You are aware of the extent of your assets
    • You are aware of the peo­ple who would nor­mal­ly be expect­ed to ben­e­fit from your estate
    • You must not be pre­vent­ed by men­tal ill­ness or men­tal dis­ease from reach­ing ratio­nal deci­sions as to who is to ben­e­fit from your Will.

 

How often do I need to update my Will?

Your wish­es of what you want to hap­pen after you die may change over time. Your Will should reflect these changes.

Cir­cum­stances where you may want to revise or update your Will include:

  • Mar­riage, sep­a­ra­tion or divorce
  • Death of spouse
  • Start­ing a de fac­to rela­tion­ship
  • Hav­ing chil­dren or grand­chil­dren
  • Your chil­dren remar­ry­ing or divorc­ing and hav­ing extend­ed fam­i­lies
  • Your cho­sen execu­tor has died, has become ill or is unable to han­dle the respon­si­bil­i­ty
  • A ben­e­fi­cia­ry in the Will has died (when writ­ing your Will, ask your lawyer to name sub­sti­tute ben­e­fi­cia­ries)
  • Buy­ing or sell­ing assets.
  • Revise worth in “today’s dol­lars”: You may have left a sum of mon­ey that seemed sig­nif­i­cant when you last made your Will, how­ev­er, has this lega­cy dimin­ished? What is it worth today?
  • Retire­ment can lim­it you restruc­tur­ing your affairs. It may be in your inter­est to be proac­tive and plan a tax-effec­tive arrange­ment through your Will.

Ulti­mate­ly it is rec­om­mend­ed that you review your Will at least every five years or when­ev­er sig­nif­i­cant changes occur in your life, such as those changes men­tioned above.

If you would like more infor­ma­tion on Wills and your Life Doc­u­ments, please watch our online Q&A here:

Our free ‘Prepar­ing your Wills and Estates’ e-guide will arm you with the key infor­ma­tion you need to know about prepar­ing your Will and plan­ning your Estate, down­load the free guide here.

Should you require any fur­ther infor­ma­tion on Wills and Estates, please con­tact us on (02) 6583 0400 or info@dohlaw.com.au.

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