What is a Will?
A Will is a written expression of a person’s wishes as to the disposal of their property following their death.
A Will has no effect until the maker of that Will “the testator” dies.
A Will must be in “writing”. That word can of course be interpreted but it should not be left to a court to determine what “writing” means. This causes unnecessary expense, delay and upset to both executors and beneficiaries.
A Will is described as a “Last Will and Testament” as the Last Will revokes any previous Will. Accordingly the date on that document is extremely important.
A person who makes a written Will and then dies is said to die “testate”. A person who dies without a written Will is said to die “intestate”. A person dying testate has written down their instructions, a person dying intestate has not left a written instruction or direction and the legislation takes effect as to the disposal of property.
A person leaving a Will is able to appoint an “executor” whilst a person not leaving a Will, dying intestate, means than an “administrator” has to be appointed and can be a more detailed and complex process. This can delay an application for probate of a Will and delay distribution. There may also be unintended consequences.
Consequences if there is no Will
For people who die intestate, the law sets out provisions for distribution of their property in a descending order of classes, depending upon who was available to take the gift, having survived the testator for a period of 30 days. The first of these is a spouse, whether or not the deceased and the spouse had children. Different provisions apply if there is a surviving spouse and children of the deceased but not of the spouse, multiple spouses, children, parents, grandparents and the like, even down to the now extended entitlement of possible cousins and ultimately to the State if no person survives to fit any of the classes described.
Overwhelmingly it is highly desirable to have a properly drafted Will in written form.
In making a Will firstly consider who is to be the executor, there may be more than one. The executor is also known as “a legal personal representative”. The executor carries out the responsibility of gathering in assets, payment of liabilities and distribution of gifts under the Will.
This is a highly responsible task.
The executor is personally liable for any inappropriate and even inadvertent acts and must be a person who can be trusted in all circumstances to not only be able to carry out the task required but also willing to carry out the task.
Having considered the question of executor it is then the matter of considering how property is to be distributed.
What may be disposed of by a Will?
The disposal is of property to which the person is entitled at the time of that person’s death. That is not necessarily property in the immediate possession or ownership of the deceased but can also include property to which the deceased is entitled by legal or other process, for example an interest in a deceased estate.
It is critical to note that in making a Will property must be disposed of otherwise the Will is said to be non-dispositive and not valid for that reason.
Who can make a Will?
A person must be over the age of 18 years; again with some exceptions as to minors contemplating a marriage but largely it is appropriate to make one from the age of 18 onwards.
Signing a Will
The Will must be in writing, signed by the testator or in some limited cases by an authorised person in the presence and at the direction of the testator and the signature is witnessed by two witnesses present who see the testator sign the document and can verify the signature.
Witnesses do not need to verify or even know the contents of the Will, merely to know that is the document which the testator signed. It is of course appropriate that the witnesses are at least able to identify that as being the document that was signed and witnessed.
A Will is a formal document which should be executed ideally in the appropriate form as required by legislation. Whilst there are provisions for amending Wills and for the court to consider and amend or rectify a Will which is deficient in form or perhaps in purpose, that is not desirable. It simply involves extended cost and delay to the beneficiaries and to the estate and may again lead to unintended consequences.
Joint tenancy and joint property
Property held jointly by the testator with one or more other persons does not form part of the estate. Property in such circumstances being a house (real property), a bank account or some other item of property jointly held with another passes by survivorship to that joint owner or joint owners and does not form part of the estate of the deceased person.
Superannuation may or may not form part of the estate. That depends upon the trustee establishing the superannuation fund and contact has to be made with the trustee of the fund to determine the beneficiary of that particular fund. There are provisions whereby a beneficiary can be defined or indeed the person’s estate can be defined as the beneficiary.
Witnessing a Will
Witnesses should be over the age of 18 years, should know the testator or be able to identify the testator and, importantly, should not be beneficiaries or possible beneficiaries which excludes relatives of the testator, regardless of how remote this relationship might be. It is wise to be cautious and to see the most independent witnesses available without any conceivable or possible interest in the terms of the Will, either directly or indirectly.
There are a number of pre-printed Wills both in newsagent form or online and whilst these may be appropriate as to form, they can lead to deficiencies when executed. Even in following the simplest of instructions, it is remarkable how many errors occur in the recreation of these Wills, which error is not discovered until such time as the person dies and the Will is submitted for Probate.
In most instances a Will can be simply and conveniently drawn. It is strongly recommended this be attended to.
In addition to preparation of a Will it is often the case that associated documents effective during a person’s life can be prepared and completed at the same time. These documents are Power of Attorney, Enduring Guardianship and in some cases, an Advanced Care Directive.
This brief outline can be discussed in more detail to fit the particular circumstances of any enquiry. This is of course general information and your own circumstances will require more detailed attention and explanation.
Wills for residents outside Australia
A Will is designed to direct how assets are to be dealt with following a person’s death Assets or liabilities may be in another state in Australia or outside Australia altogether. In those instances it is possible to have a Will which refers to assets in different jurisdictions .Separate gifts may be made to separate people or simply separately described and scheduled.
When an application for Probate is made in relation to a Will it is important to understand that the jurisdiction of a Court, for example in NSW, relates to assets in NSW. It may be necessary to apply for what is known as a “reseal” of a Grant of Probate of a Will, initially given in NSW, in some other state or jurisdiction.
Some legislation such as the British Probate Act 1898 can be of assistance in relation to Commonwealth and Australian jurisdictions but it is often of more benefit to have separate gifts in relation to such assets. This greatly assists with the obtaining of a grant of reseal of a Will or proceeding to an application in another jurisdiction where there are no assets in NSW.
Again these matters can be expanded upon and discussed further upon a specific enquiry so please contact me for more information.