Information about wills
What is a will?
A will is a written legal document that details how the person making the will would like his or her property to be distributed after death. A will usually contains information about who will receive certain property, who will be responsible for carrying out the will’s terms, and other matters, such as where the testator would like to be buried.
Who can make a will?
Anyone who is aged 18 years or over can make a will. Also, anyone who is aged less than 18 but is married or is about to be married has the capacity to make a will. Someone aged less than 18 can generally make a will with the approval of the court; an example of when this might occur is if a minor received a large amount of money as a gift.
What is testamentary capacity?
A person must have testamentary capacity to be able to make a will. To have testamentary capacity, you must be of sound mind, memory and understanding at the time of making the will. Of course, you also need to be at least 18 years old or otherwise able to make a will as a minor (see Who can make a Will? above)
A person has testamentary capacity if he or she:
- knows what a will is
- Realises generally the worth and type of property they are distributing under the will
- Can assess the so-called moral claims on the estate. That is, the people the testator might reasonably be expected to provide for
What are the issues to consider before preparing a will?
- What is in your estate? You can give under your will any part of your property. Generally, funds from life insurance policies and superannuation do not form part of the estate.
- Who do you want to receive your property?
- How do you want your debts paid?
- Do you want to give your property outright or have ongoing payments? If you do want to set up a trust you must decide who you wish to appoint as trustee
- Who do you want to appoint as executor? It is important to appoint someone you have confidence in because they will bear a number of responsibilities and will be in charge of the distribution of your estate. You might want to appoint an alternative executor in case the first executor cannot act for some reason.
- Do you have children aged less than 18? If so, who do you want to be their guardian? There is an organization in each State and Territory that appoints guardians; it may take into consideration directions given in your will.
- What sort of burial or cremation arrangements you want.
Should I seek legal assistance to draft my will?
While a solicitor is not strictly necessary to the drafting of a valid will, it is a good idea to engage one. A succession law solicitor will have expertise in will preparation, and will be able to quickly spot any problems with the document. He or she will also ensure the drafted will disposes of your estate properly and in line with your wishes. A solicitor will be especially useful in the case of a large or complicated estate.
What are mutual wills?
These are separate wills usually made by spouses or partners which provide for reciprocal benefits for each other.
What are testamentary trusts?
This is a trust created through a will. It comes into existence only upon the death of the testator. There is no requirement for a separate trust deed. The interest is held on trust for the beneficiaries under conditions stipulated in the will. Testamentary trusts enable the testator to defer vesting a gift to a beneficiary. If a discretionary trust is used, they can provide flexibility to enable the trustee to consider the needs of the beneficiaries. Testamentary trusts also have important tax consequences as ‘excepted trust income’ under Division 6AA Income Tax Assessment Act 1936 (Cth)
What is the Witness Beneficiary Rule?
Generally a person or spouse of a person who receives a benefit under the will cannot be a witness to the will; this is known as the Witness Beneficiary Rule. If someone who stands to benefit under the will, or his or her spouse, signs as witness to the will, the potential beneficiary’s share is void as far as it concerns the beneficiary. Sometimes the rule is waived if the court is satisfied the testator knew and approved of the gift and the gift was made freely and voluntarily by the testator.
When might a person want to alter their will?
Some of the cases in which a person might consider altering their will include:
- If they marry
- If they divorce
- If they have more children
- If their assets change significantly
- If a beneficiary’s circumstances change
- If a beneficiary or executor dies or becomes incapacitated
What is a Codicil?
Where a will already exists and the testator wishes to alter various provisions, they can do so by preparing a codicil and annexing a copy of the codicil to the will. A codicil is a new document that adds to an earlier will. A codicil has to fulfill the same formal requirements of a will.
How can a will be revoked?
A will can be revoked by:
- Operation of law: such as by marriage or divorce (in some cases)
- Voluntarily: where the testator (who still has testamentary capacity) makes a new will, declares in writing an intention to revoke or destroys the will.
What is the effect of marriage on a will?
Generally marriage revokes a will unless the will was made in contemplation of the marriage. The contemplation of marriage doesn’t have to be written into the will but it is advisable that it is. This can help to avoid confusion.
What is the effect of divorce on a will?
Generally divorce does not revoke the whole will, but it does make void any gift to the former spouse. If the former spouse was executor, trustee or guardian under the will, that part of the will is also revoked by the divorce. However the will stands if the court accepts it was not the intention of the testator to revoke the will on divorce.
Where should you store your will?
Many people store their wills in banks’ safety deposit boxes or with their solicitors. It is important that your executor can locate the will so that he can carry out your wishes. “Australian Will Register” is a searchable online register that acts as a will document register and depository.