Should I Make a Will

Should I make a Will?

Yes. It is essential to make a Will if you are concerned about who will receive your assets and belongings after you die. It is particularly important to make a Will if you have a family or other dependents. Even if you are married with dependents you need a Will. Without a Will the people you leave behind have to approach the Supreme Court for permission to distribute your assets in accordance with a strict formula, which may not be what you want.

What is a Will?

A Will is a legal document that names the people you want to receive the things you own, your property and possessions, after you die. These people are known as your beneficiaries. Your property and possessions include everything you own: your home, land, car, money in bank accounts, insurance policies, shares, jewellery, pictures, furniture and so on. It does not include your superannuation which is dealt with in a number of different ways. Making a Will is the only way you can ensure your assets will be distributed in the way you want after you die.

What is a valid Will?

A valid Will is one accepted by the Court and put into effect by a grant of probate. To be valid your Will must be:

  • In writing – handwritten, typed or printed;
  • Signed – ideally your signature should be at
  • the end of the Will;
  • Witnessed – two witnesses must be present when you sign your Will and acknowledge it and they too must sign in your presence.

If your Will is not made in this manner it may not be enforceable. The Court has a discretion to grant or not grant probate (confirm that the Will is valid). If it does not confirm your Will is valid your property could be disposed of as if you had not made a Will. In exercising its discretion, the Court needs to be satisfied that the document sets out how you want your assets to be distributed after you die. It can become a very expensive exercise if the Court is involved.

Can I make a Will myself?

You can make a Will yourself; printed forms are available from newsagents. There is no requirement that a solicitor draft a Will. However, there have been very many cases where homemade Wills were either not properly drawn up or were unclear. Many of these cases end up in Court and caused distress and perhaps hardship to the family of the deceased. Since it is one of the most important legal documents you will ever make, it is false economy to try to do it without skilled professional advice.

“…. if you had not made a valid Will, your assets would be distributed under a rigid formula regardless of what you might wish.”

How can I make sure my wishes are carried out?

Under your Will you appoint a person called an executor to handle your affairs after you die. If you wish, you can name more than one person to act as executor. You can choose anyone to be your executor; your spouse, relative, a friend, but you should first ask them if they are prepared to take on the task and confirm with them that they have been appointed. Being an executor is a very responsible position. The executor has to obtain probate of the Will and pay your taxes, debts or expenses from your money before finally distributing the balance to the beneficiaries named in your Will.

What happens if I don’t make a Will?

The legal procedures are more complicated and time consuming and will cause expense, worry and even hardship to your family. The law provides a formula which sets out who is entitled to the property of a deceased person who does not leave a Will. The formula may not distribute your assets in the way you would have wanted. It is not true that the Government takes a deceased person’s property if there is no Will. This can happen only in exceptional cases where there are no close relatives or people in a family relationship surviving the deceased.

Can I change my Will if I change my mind?

Yes. You are free to alter your Will at any time. If your circumstances change in any way, you can and should alter your Will. However you cannot make an alteration by, for instance, crossing something out on the original Will and writing in your new wishes. If the alterations are minor, you can make a Codicil (this is a separate document in which you change a provision in your Will) but it is usually better to make an entirely new Will unless the change is a very simple one. A Codicil must be signed in the presence of two witnesses, in the same way as when you made your Will.

“If your circumstances change in any way, you can and should alter your Will.”

What if I marry or divorce?

If you made a Will before you married, it will automatically be revoked when you marry, unless it was made with a particular marriage in mind, or expressly stated that it was made in contemplation of marriage. So if you marry, it is more than likely you will need to make a new Will. Any gift or appointment (eg as an executor or guardian) in favour of a former spouse in your Will is automatically revoked when a divorce decree becomes absolute or a decree of nullity is made. It is in your best interests to make a new Will or Codicil if you are separated or divorced.

Can I leave my assets to anyone I please?

Yes, but you should make adequate provision for your spouse and children, including ex-nuptial children. If you do not, they have the right to challenge your Will.

Where should I keep my Will?

Keep your Will in a safe place. Solicitors, banks and trustee companies hold Wills on behalf of people, often at no charge. You should make a copy of your Will and note on it where the original is kept. It is advisable to tell your executor where your Will is kept. If you want to give your executor personal instructions that you do not want to appear in your Will, you can leave your executor a letter of instructions.

How will my Solicitor help me?

Having a solicitor draw up your Will is in your best interests because he or she will:

  • Make sure your Will is valid, that is, properly drawn, signed and witnessed;
  • Make sure your wishes are clearly expressed in the Will;
  • Advise you regarding adequate provision for your spouse and children, or for any former spouse or dependents;
  • Advise you as to any financial advice you should seek regarding possible capital gains tax etc.
  • Advise you on choosing an executor and on the executor’s rights to be paid for his or her time and trouble in administering your estate;
  • Advise you on the best way to arrange your affairs;
  • Keep the Will in a safe place, usually without charge.

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