Your Will

What is a Will?

A Will is a legal document which sets out your wishes as to how your assets are to be distributed after your death.

Assets not covered by a Will

You can only include assets that are owned exclusively by you in your Will. That is, assets in your sole name. Assets which you own as ‘tenants in common’ can also be included.

Example of assets not covered by a Will include:

• assets which are owned jointly (as ‘joint tenants’) such as family homes or bank accounts. Ownership will pass to the surviving joint owner automatically. This is known as the right of survivorship;
• money held by a superannuation fund;
• assets owned by discretionary trusts. These don’t become part of your estate because they remain the property of the trust;
• proceeds from a life insurance policy, which are paid directly to the beneficiary nominated by the insured person and do not form part of the deceased’s estate.

It is important to get the right legal advice when preparing your Will to reduce the chance of a dispute between your beneficiaries and ensure your wishes are carried out.

What is the difference between ‘joint tenants’ and ‘tenants in common’?

If two or more people own property together they might be ‘joint tenants’ or ‘tenants in common’.

Joint tenants

In this situation, assets owned together in an undivided share; eg a family home. The surviving co-owner will receive the assets by way of survivorship, upon the death of the other co-owner.

Tenants in Common

In this situation, each owner has a separate divisible share in the assets; eg a property owned by a brother and sister. In this instance, each owner can leave their share in the property to whoever they choose in their respective Wills.

Appointing an Executor

‘Executor’ is the title given to a person/s you appoint in your Will to manage your estate after you die. Your Executor has responsibility for carrying out your wishes as set out in your Will.

You should consider carefully who you select as your Executor/s. Your Executor should be someone you know very well and who you trust implicitly. Common choices are spouse, children, siblings or other trusted relatives or friends.

What does an Executor do?

After your death, your Executor has responsibility for the entire administration of your estate including paying all debts and distributing all assets to beneficiaries.

Duties of an Executor may include:

• searching for and locating your original and most current Will;
• applying to the Supreme Court for a Grant of Probate;
• notifying all beneficiaries;
• collecting, selling and distributing assets;
• payment of all debts;
• payment of funeral and testamentary expenses;
• keeping proper records;
• providing notification of death to government departments and statutory authorities;
• arranging for lodgement of final tax return; and
• managing digital assets and liaising with social media platforms.

The duties of an Executor are often onerous and complex so it is important that you choose someone with the skills and knowledge to undertake these duties and if necessary, to liaise with a lawyer to seek advice and assistance in carrying out the duties.

Choosing beneficiaries

The term ‘beneficiary’ is given to the person/s or organisations you choose to leave your estate to.

There is a general expectation at law that the Will-maker will make provision for dependents. Dependents may include a spouse or children for example.

If the Will-maker chooses not to include dependents in their Will, it may expose the Will to being challenged. If the Will is challenged, the court may make an order in favour of the person/s challenging the Will and award them a proportion of the estate.

If you are contemplating leaving someone out of your Will, it is important that you seek legal advice.

Appointing guardians (for children under 18)

If both parents die leaving a child or children under the age of 18 years, you can provide for them by including a clause in your Will appointing guardians for your child/ children.

It is important that you speak with the person(s) you are considering appointing as guardians to ensure they are both willing and able to take on this role.

What makes a Will invalid?

A court may find that a Will is invalid if it can be established that the Will-maker did not:

• intend to make a Will;
• make the Will of their own free will, ie voluntarily; and/or
• have testamentary capacity.

A Will may also be invalid if it is not signed or witnessed correctly. It may be possible for some errors to be overcome through the probate process but this is dependent upon the Registrar of Probate and any extra information submitted to the Registrar.

What is a testamentary trust Will?

A testamentary trust Will is a type of Will which establishes a trust/s upon your death.

This type of Will can be useful if the Will-maker wishes to protect assets when they pass to beneficiaries. The beneficiary of your estate can be provided with the option to receive all or part of their inheritance via a testamentary trust. This means that that the trust owns the assets rather than the individual beneficiary.

Testamentary trusts can provide greater flexibility in estate planning, protect assets from future marital breakdown or business collapse and may also have associated taxation benefits.

Can my Will be challenged?

Yes, your Will can potentially be challenged. Your Will may be challenged on the basis that it was not valid because at the time of making your Will, you did not have the requisite testamentary capacity or you made your Will whilst being unduly influenced by someone or you have not adequately provided for someone. (Refer to ‘Choosing Beneficiaries’ above).

If a person challenges your Will, court proceedings may be issued and the matter may proceed to trial if it cannot be resolved beforehand. Part of the legal costs may be paid from the estate.

In order to avoid your Will being challenged, you should seek legal advice before preparing it and have the Will properly drawn and executed.

When should I review my Will?

Wills should be reviewed periodically or when there are major changes in your life and personal circumstances. Some examples of when you should review your Will may include:

• When you get married;
• When you separate from your spouse;
• When you get divorced;
• If your assets change;
• If there is a change to your beneficiaries such as injury, disability, bankruptcy;
• Death of a beneficiary or executor.

It is important that you do not attempt to change your Will yourself by making alterations to the Will (for example, handwritten changes onto the written document) as this may invalidate the Will.