Why Do I Need A Will?Charly Tannous / 0 Comments /
A Will is a legal document that outlines who you want to receive your assets when you pass away. Making a Will is the only way you can make certain that your assets will be distributed in accordance with your wishes when you die.
What Do I Require for My Will to be Valid?
To ensure that a Will is valid, it needs to comply with the following requirements:
- The person making the Will must be over 18 years old;
- It must be in writing – it can either be handwritten, typed or printed;
- It must be signed by the person making the Will (known as the testator) and witnessed by two or more witnesses. Anyone that is appointed as a beneficiary cannot be a witness, otherwise, their interest in the estate may be revoked; and
- The Testator must have “testamentary capacity” in that, the person must understand the legal effect of a Will; they must be conscious of the scope of their assets; they must also be mindful of the persons who would ordinarily be likely to benefit from your estate and further, the Testator must not be precluded due to a mental condition, from making cogent decisions as to who is to benefit from their Will.
Can I Prepare My Own Will?
Although you have the option of preparing your own Will or utilizing a do-it-yourself Will kit, making your own Will is not advisable. As there are strict legal criteria that need to be satisfied, if your Will is not correctly prepared, you run the risk of the Court making a determination that your Will is invalid. If this occurs, your assets will be distributed according to a predetermined formula and not in accordance with your intended wishes.
In the event that you die without making a Will, you will be deemed to have died ‘intestate’ which means that in the absence of a Will, it is unknown who a testator wished to appoint as beneficiaries and an executor. The assets of the estate will therefore be distributed in conformity with a pre-determined formula, which provides that certain family members receive a defined percentage of your assets despite what you may have wanted.
What If I Die Without A Will?
Dying intestate can consequently lead to your surviving spouse, family and friends enduring unwarranted financial hardship and emotional stress.
A commonly asked question is whether marriage or divorce affects a person’s Will. Should you marry after you have made a Will, the Will is generally repealed, except if the Will was made in anticipation of marriage. Marriage will not alter a gift to the person who is your spouse at your date of death. In the event that you divorce after you make your Will, it only revokes any gift to a former spouse. It also annuls your spouse’s appointment as executor, trustee or guardian in the Will, but will not cancel a nomination of a former spouse as trustee of property left on trust for beneficiaries that include children of both you and the former spouse.
In regards to same sex and de facto relationships, a partner may be entitled to a share of the estate if they can legally verify that the relationship existed. This evidence is normally provided by a written statement in the form of an Affidavit, which provides a history of the relationship and the status of such relationship as at the date of death.
Am I Entitled to Make A Claim If My Spouse Has Not Left Me Anything in the Will?
Even though you are allowed to leave your assets to anybody you wish, in certain instances, friends or relatives who believe they have not been adequately provided for are eligible to contest your Will. Claimants can include a de-facto partner, any other dependents or a former spouse. The Succession Act 2006 details the requirements for contesting a Will. In a nutshell, the person contesting the Will needs to persuade the Court that the testator failed to make adequate provisions for their maintenance, education or advancement in life.
Given the existence of complicated family structures, if a Will is not carefully prepared, this will inevitably give rise to the contestation of your Will.
As a Will generally expresses a testator’s wishes at a specific moment in time, it is prudent to regularly review your Will as your situation changes, so that it precisely reflects your recent wishes
In our capacity as estate planning solicitors, we are able to provide competent legal advice to people contemplating on making their Wills. Bearing in mind that a Will is an important legal document, it is advisable to have the Will drafted in the correct legal terms, so that your wishes are appropriately documented and implemented.