Do I need a Will?

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.