A will is one of the most important documents you can make. So what is it? Why is it so important to have one and what happens if you don’t have a will? This is the complete guide to wills in Australia.
Definition
At law, a will (also known as a last will and testament) is a legal document in which the will maker (‘the testator’) sets out how they would like their property (the ‘estate’) to be dealt with after their death. A will states whom will be receiving a share or the whole of the testator’s assets after they pass. Having a will is the only way that the testator can be sure that their estate will be distributed according to their wishes. A will includes who the estate will be distributed to (‘the beneficiaries’) and who the testator has chosen to distribute their estate after their death (‘the executor’).
Online Wills vs Solicitor Drafted Wills (what are the risks?)
There are many risks of a do-it-yourself will. Wills can be complex no matter the size of the estate. Words in a will can be misconstrued resulting in ambiguity and therefore assets may not be distributed as a testator originally wanted them to be. Having a lawyer draft a will ensures that there is no ambiguity. A lawyer drafting a will helps minimise any arguments or legal battles between family members as the wording of the will is important. A lawyer also provides advice regarding any questions that a testator may have and can help a testator make a decision on who would be the best person/s to appoint executor and trustee. Furthermore, a lawyer ensures that there will be minimal allegations regarding duress or mental capacity of the testator at the time of making the will.
Need a will? A solicitor-draft will costs just $499 here at Will and Estate Lawyers Australia. See our Wills Brisbane page for more information – we can help you in Queensland and interstate too.
What to include in a will
The following should be included in a will:
- A will must firstly set out that it is the last will and testament of a person, their full name, address and occupation;
- A will includes who the executor and trustee of the will is;
- If a person has children under 18 or dependants then a legal guardian should be named in the will;
- A will includes assets of the testator, which can be both financial and of sentimental value and who these assets are to be distributed to;
- A will is to be signed and witnessed.
What factors can mean you need to have a will drafted by a solicitor?
Capacity
Commonly, wills are challenged because it is argued that the testator lacked capacity at the time the will was made. Arguments in relation to capacity usually occur when a testator is unwell or old at the time that a will was made. Having a will lawyer draft the will can help prevent this issue as a lawyer can arrange for the testator to be examined by a doctor prior to the will being made and then provide evidence that the testator did not lack capacity.
Undue influence
Having a will drafted by a solicitor helps prevent the testator being unduly influenced by a friend, family member or other person in their life. If the influence of another on a will-maker is in question, demonstrating that a lawyer assisted the process can be the difference between establishing a valid will and having it set aside.
Other circumstances
Briefly, some other factors can mean you need to have your will drafted by a solicitor:
- Blended families – a testator may wish to leave some family members out of the will and a lawyer can help draft this to ensure there is no ambiguity;
- Transfer of companies;
- trusts.
(FAQ) Frequently Asked Questions
Having a will ensures that your property will be distributed or managed according to your wishes. A will helps to avoid potential arguments over personal assets between family members. If a person dies without a will, they have died intestate and their assets will be distributed to the deceased’s family in accordance with Intestacy rules. If this occurs, the testator’s assets may not be distributed how they would like them to be.
If a person has assets then a will is necessary if they wish for these assets to be distributed according to their wishes. When someone dies without a will their family must deal with the complications of identifying who is eligible and has priority to apply for letters of administration on intestacy which is needed before any assets will be released by banks etc. This exercise is not cheap - costing thousands of dollars in court and legal fees.
A will is important if a person has family or other people that are financially dependent on them. A will is also necessary if a testator wishes to leave items of sentimental value to particular people. Having a will helps reduce any fights or legal battles over an estate. A will also allows a person to leave people out of their estate if someone in their life is now estranged.
If a person is over the age of 18 years old and is of sound mind then they can prepare their own will. There are do-it-yourself will kits available online and they are a low cost solution compared to going to a lawyer. However, do-it-yourself kits do not adequately handle complicated areas of wills, such as blended families. There is a danger of not completing a will properly by doing it yourself without a solicitor drafting the will. You run a real risk that your family will incur thousands of dollars trying to prove a document is your last will.
There are things that a testator should not put in a will. This includes:
- Jointly held assets – when a person dies, jointly held assets automatically goes to the survivor in full. This is the survivorship principle and includes joint accounts and joint tenancy properties;
- Superannuation – superannuation is to be outlined in a binding death nomination, not a will;
- Illegal requests – requests that are illegal should not be included in a will;
- Gifts to pets – a pet is incapable of inheriting a gift and therefore cannot be left anything.
It is a common misconception that a person has no assets. While some people may not have a lot of money saved or believe that they do not have significant assets, other belongs such as a vehicle or things with sentimental value can be passed along to friends and family in a will. This ensures that any property, even of little value, is distributed to people that a testator would like it to go to. Fights between family members can still occur over things that they may think have sentimental value to them.
A spouse and a civil partner
If a person has died intestate (without a will) their estate will be distributed in accordance with intestacy rules. Therefore, if the person who has died has a spouse or civil partner and has no children/no children surviving then the spouse or civil partner will take the whole of the residuary estate. Until there is a divorce or separation from the civil partner then these parties can still be entitles to intestacy.
A defacto spouse
A defacto spouse is granted the same rights as a spouse or a civil partner when there is no will and no children. However, there is no entitlement to intestacy when there has been separation from the defacto spouse.
