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Wills – FAQ’s

Published February 2011

What is a will?
A will is a formal legal document that sets out how you wish your property (which is known as your “estate”) to be distributed after your death.

Do I have to make a will?
No. There is no legal requirement for people to make wills. However, if you die without a will, your property will be divided according to specific rules set down in legislation. These rules may not match the way you would want your belongings to be distributed, but without a will these rules will be followed regardless, and the process of finalising your estate will take longer and be more expensive.

How do I get a will?
You may either write your own will, or get a lawyer to assist in drafting your will. However produced, the document must adhere to certain legal requirements.

Can I do it myself?
There are will kits available to assist you in preparing a will, however, the formalities attached to wills are very strict. You should take extreme care if you wish to produce your will entirely without legal advice. We at Penmans recommend that people drafting a will seek advice, to ensure that the document accurately contains all of your wishes and that it satisfies the requirements of law.

Formalities?…What formalities?
You must name your executor; if you do not, the court will appoint one to administer your estate. The will must be correctly witnessed. The will should renounce all former wills and state that this is the last will made by you. You should carefully consider the needs of your dependants (if any).
This last point can be tricky. Although you do have certain freedoms in your will, the law recognises that particular relationships create particular obligations. If the court deems that your will does not adequately provide for your dependants (or other relatives), your wishes may be overruled to the extent that these needs can be accommodated by using some of your property. So, think carefully about how to divide your property, it is the simplest way to avoid problems after death. Here at Penmans Solicitors, we regard this as one of the most important benefits of our expert legal advice.

Who can witness my will?
You must have two witnesses and they may be anyone over 18 years of age. However, there is one important exception: A witness cannot be a beneficiary or a spouse of a beneficiary under your will. This is a strict requirement so you should choose your witnesses carefully.

What should I include in the will?
Although there are certain legal requirements, what you include in the will is up to you. However you should probably consider the following questions. Who will be your executor; that is, who is designated to carry out the instructions in your will and to administer the estate? If you have children, who do you want to look after them if you die? What sort of funeral arrangements (eg burial or cremation?) are required and have you made any wishes regarding organ donation clear to your next of kin?
Finally, you should very carefully consider how you want your estate to be distributed.

Does the will prevent claims on my estate?

A will may be challenged. People not named in the will may lodge a claim on the estate. A claim may succeed if your will:

    • does not adhere to the required formalities;
    • does not provide adequately for dependants;
    • has been altered after you signed;
    •  was influenced by another person and was not your true intentions (as decided by the court)
    • was revoked by you before your death.

What if my circumstances change?
This is an extremely important point. Generally you should consider updating your will whenever a momentous occasion occurs in your life, for example, a birth, death, or marriage of a family member, major property purchases, moving interstate. There are different ways to change a will, including variation, attaching additional material, or completely rewriting. Expert legal advice is the best path to ensuring that the will you have is still valid for your current circumstances.

How does marriage affect my will?
If you marry your will is automatically invalid and you will need to make a new will.
Separation does not affect the legal validity of a will. Therefore, if a separation alters how you view your estate, you should change your will immediately. In the case of divorce, matters become complicated. Your will is not invalidated upon divorce. However, the entitlements of your previous spouse pass to those people who would receive them if that spouse had died before you. Obviously, re-drafting your will is advisable, if not essential, after divorce.

How does a de facto relationship affect my will?
If you enter a de facto relationship, any previous will retains its validity and in order to leave assets to your de facto partner you must amend your will. The consequences for separation are the same in these circumstances as for marriage so you should make a new will if you separate.

So I’ve made a will, but what do I do with it?
You should store your will in a safe place, preferably in the keeping of your solicitor or another trusted person. You should tell your executor where the original is, and keep a copy for yourself.
For specific advice on wills & estates  contact Penmans Solicitors.

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