What is a Will?
A Will is a legal document that sets out who you want to receive your assets when you die. Making a Will is the only way you can ensure your assets will be distributed according to your wishes when you die, unless you have made substantial inter vivos gifts.
Will planning might at the outset seem like a relatively straightforward process, yet realistically a legally sound and effective Will can be difficult to achieve without careful consideration of the law.
Figures from the NSW government show that only around 55% of Australians have a Will, and of the remaining 45% some don’t have a Will at all, while others have a document that is either invalid, not up to date so to reflect current wishes or unbeknown to them has been revoked due to substantial life changes. If you die and your Will is considered invalid, or has been revoked, there is every chance that your belongings will be distributed in accordance with the rules of intestacy, which could result in an outcome you would have least desired. For example, if your only living relatives are more distant than cousins, your Estate assets could pass to the government.
How to ensure a Valid Will
For a Will to be valid in Victoria it typically needs to comply with the formalities of the Wills Act 1997 (Vic). This being:
- You must have attained the age of 18 years;
- You must have the capacity to make the Will. This being that you know the legal effect of a Will, are aware of the full extent of your assets, are aware of the people who would normally be expected to benefit from your Estate, and are not be prevented by reason of mental illness or mental disease from reaching rational decisions as to who is to benefit from your Will;
- The Will must be signed by the by yourself or by some other person in the presence of and at your direction;
- The signature must be made with your intention to make the Will;
- You must sign the Will in the presence of two witnesses;
- The two witnesses must sign the Will in your presence (but not necessarily in the presence of each other);
Relationship changes and their effect on a Will
It is not enough that the Will is legally sound per the aforementioned provisions in the Wills Act. It also must reflect your current life situation.
Unless your Will clearly shows that you were planning on marriage to the specified person at the time when you made the Will, marrying or re-marrying automatically revokes your Will.
Generally the Will takes effect as if the divorced spouse has died before you, and thus it will not revoke the Will but it will revoke any gift to your former spouse and the specified gift will form part of your residue Estate. It will also cancel your spouse’s appointment as Executor, trustee or guardian in the Will.
If you separate, your former partner will still get your property unless you make a new Will. Unlike with marriage, it is not automatically revoked so it is important that you make a new Will after any relationship breakdown so that it cancels out your old one.
Hence, although divorce and separation will not invalidate your Will the same way marriage will, it could result in an outcome you did not desire and unfortunately the courts are bound by the document. So – keep this is mind at all times.
Times to update a Will
As your Will expresses your wishes at a particular point in time, it is advisable that it is regularly reviewed as your circumstances change. Every 5 years or so is suggested.
Further to marriage, divorce or separation, situations where you may want to update your Will include:
- Having children or grandchildren;
- Your children having re-married or divorced;
- Executor of your Will no longer having capacity to undertake their duties;
- Death of a spouse;
- Beneficiary in a Will dying (when writing your Will it is therefore recommended to always name substitute beneficiaries);
- Value of your Estate diminishing or increasing;
- When you bequeath assets originally in your Will;
Do it yourself, or get legal advice?
Precise wording of a Will is a specialised and important legal task, and the ordinary meaning of words is not necessarily the same as their legal meaning. Thus, more often than not, where a Will has been drafted by someone not legally qualified it has grounds for a challenge. Beneficiaries end up in the Supreme Court trying to resolve linguistic ambiguities and validity issues, and at the same time slowly eat away at the will-makers hard earned assets. Don’t let this be your fate, seek legal advice today and get yourself out of the 45 and into the 55 percentile range!