By making a will a person can:
- leave monies, property and valued belongings to friends and family
- identify and leave particular items to certain people
- specify a trusted person who will carry out the instructions in a will (i.e. your executor)
- specify any other instructions a person may have (i.e. about your funeral arrangements)
- establish a fund for a particular social purpose e.g. a foundation or trust
- specify a certain amount of your estate to a charity if you wish
If you have a blended family or second marriage you can leave gifts and other rights to your children and former spouses.
It is important to consider making a will as it removes doubt and provides certainty as to the deceased persons wishes.
For those that do not own property (i.e. land) you may want to leave other valuable or sentimental property such as:
- family heirlooms
- art works,
- photographs (online photo collections)
Once a person dies their property and belongings are referred to as their estate.
Do I need a will?
By having a will you get a say in how your property is divided amongst your beneficiaries when you die.
Dying without a will or dying intestate’ means your estate will be distributed according to the ‘intestacy rules’ under the Succession Act.
It is important to know that whilst this might not be your problem once you have passed away, that your estate may be subject to extra delays and extra costs for those you leave behind.
The NSW Government may take all your estate should you die intestate should you no relatives closer than a first cousin.
It is important to know that if you want someone to assist manage your finances while you are still alive. You will need to make a Power of Attorney as a will only operates after you die.
Who can make a will?
A person over the age of 18 can make a will as long as they have mental capacity.
It is important to consult with a solicitor in order to ensure that if there are doubts as to capacity that a solicitor and or a medical practitioner, psychologist or psychiatrist will also be able to verify the person had the mental capacity and understanding in order to make a valid Will.
If a a person has a mild intellectual disability or is in the early stages of dementia, they may still be able to make a will if they have capacity at the time the will is made. Once again, if that person is likely to have a significant estate and you believe that there may be an issue with their mental capacity, it is far better to gain legal advice rather sooner rather than later.
How do I make a will?
Making a valid will can be fairly straightforward. Wills in order to be valid must meet the test as set out in the
A will must be signed and witnessed properly to be legally valid. It is also important that your intentions are expressed clearly to reduce the chance of any argument over who you wanted to get what. It is therefore best to have a solicitor, or the NSW Trustee and Guardian, or a trustee company, do your will for you. While there are do-it-yourself will kits, it is safer to get a professional to do your will to make sure it is done properly.
A professional can also advise you on any tax issues you need to take into account when drafting your will.
What makes a will valid?
A will generally needs three things to be valid:
1. It must be in writing (whether handwritten, typed or printed)
2. It must be signed, and
3. Your signature must be witnessed by two other people who also need to sign the will.
How much does it cost to make a will?
Our fees vary depending on how complex the will is. As no person is the same, we take a personalised approach to drafting your will.
Our process is that after an initial assessment of your instructions we provide a costs agreement before we commence work so that clients are aware of the likely cost of drafting their will.
Once the client is satisfied with the scope of work we provide a letter of advice confirming our advice and enclose the draft will.
We also offer advanced care plans, enduring guardianship and enduring power of attorney as part of the suite of services.
Does my will expire?
Your will lasts until you die. The most current will you make takes priority if you revoke all previously made wills’.
By getting married, your will also be revoked unless the will was made in anticipation of that particular marriage.
If you plan to marry or divorce you should update your will.
You should consider obtaining legal advice about updating your will if your circumstances change in other ways, for example, if children or grandchildren are born, or if your partner dies or if your children are considering separating and or likely to become bankrupt.
Who is the best person to appoint as my executor?
The executor is the person (or company) named in your will who will be responsible for dealing with your estate after you die.
It is important that you consider the choice of executor with extreme care. You may choose one executor or have several acting jointly.
Your executor should be over the age of 18, is someone whom you trust and who is also prepared to take on this responsibility.
Or you can appoint a professional, such a solicitor to assist administer your estate.
You should make sure your executor knows where your will is kept.
Where should I keep my will?
Our safe custody service keeps your original will in safe custody for clients at no charge.
We believe that this is the safest option because if your will cannot be found, it will be assumed that you destroyed it and revoked it.
You should also give a copy to the executor (in a envelope if you prefer) or tell them where the original is.
Ways a will can be challenged?
A will can be challenged on the grounds that it is not valid.
What this means is that the person contesting an invalid will would have to show that:
1. it was not properly signed and witnessed
2. you were forced or pressured (rather than encouraged) into making the will.
3. It was not your last Will
4. you did not have the mental capacity when you made the Will (lacked capacity)
5. it was changed after it was originally signed, or
Family Provision Claims
Certain categories of people can also contest a will within 12 months of your death if they believe they were not properly provided for in the will. This is essentially called a ‘family provision claim’. These categories are set out in the Succession Act:
- The wife or husband of the deceased when the deceased died;
- Former wives and husbands of the deceased;
- The de facto with the deceased when he/she died;
- A child/children of the deceased;
- A person
- who was, at any particular time, wholly or partly dependent on the deceased, and
- who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member;
- A person who was living with the deceased in a close personal relationship at the time of death.
If your will was drafted by a solicitor it can lessen the chances of a family provision claim being successful against your estate.
Can I change my will if I change my mind?
A person can change your will at any time and as many times as they wish as long as they have mental capacity.
A codicil is a document that amends, rather than replaces, a previously executed will.
It is relatively easy to make a codicil however its general easier to make a new will if the change is significant.
Can I leave a gift to a charity or setup a foundation?
You may leave a gift such as property or monies (a ‘bequest’) to your favourite charity is a powerful way of expressing your support for a cause that is important to you.
It is important to get legal advice to make sure this is done correctly (the charity must be correctly described) and that your loved ones are properly looked after.
For assistance on drafting your will contact us.