It is never easy to lose a family member, friend or loved one. Sorrow and mourning are a natural part of the grieving process but the pain of the situation can be eased to a certain extent if an up to date Will is in place.
A Will is a document in which a person (the testator) outlines the administration and distribution of their assets and property after their death. If the deceased has a minor child or children, it will detail who they wish to have as guardians of the child or children. Funeral arrangements are also commonly included.
With a Will in place, the transition of assets and property to the delegated family members can be a painless process. A Will creates certainty, appoints executors and leaves estates to appropriate beneficiaries. Without a Will, family members can be left with an administrative burden at a time they can least afford to deal with it.
Creating a Will
Anyone over 18 years of age can create a Will, provided they have what is known as testamentary capacity. In order to have testamentary capacity, you must:
- Know that the document you are preparing and executing is a Will
- Know your asset base
- Know roughly how much your assets are worth
- Know who the important people in your life are
- Know who will receive the benefits under your Will
- Be free from delusions or mental conditions.
Your Will should be prepared by a lawyer to ensure that it is a legally binding document.
The executors of your Will
When creating your Will, you need to decide who should be appointed as your executors. Your executors are responsible for the administration of your estate when you pass away. We recommend that you appoint at least three joint or alternate executors as complications and costs arise if a sole executor dies before your estate is finalised. It is preferable to select executors under the age of seventy-five (75) to ensure they are healthy when the responsibility is passed to them. You should only appoint people that you trust to act in the best interests of your estate. They should be able to handle the financial responsibilities associated with such an appointment.
The duties of an executor may include:
- Organising and paying for your funeral
- Ascertaining the extent of your estate
- Taking control of your assets
- Instructing solicitors to obtain a grant of Probate in the Supreme Court of Victoria Probate Jurisdiction
- Paying all of your liabilities and resolving disputes that may arise in your estate
- Redeeming parts of your estate and distributing your assets according to the Will
Two witnesses are required to create a Will. The witnesses must be over the age of 18 years and should not be beneficiaries of the Will. Your two witnesses must sign at the end of the Will and detail their names in full, their address and occupations. They should sign at the bottom of all other pages. The signing should take place in the presence of each other and the testator.
Making modifications to your Will
You should regularly review your Will, especially if changes occur in your family’s circumstances. We recommend that you review your Will at least every five years to ensure the document accurately reflects your current wishes.
Changing a Will can be as simple as creating a new version that specifically revokes any earlier Will. Alternatively, you can destroy your current Will by tearing it, ripping it up or showing an intention to revoke it.
Can your Will be challenged?
Yes. The validity of a Will can be challenged for a number of reasons, including the following scenarios:
- It is alleged that it was made under pressure from others.
- Where the person did not have testamentary capacity at the time of making the Will.
- Where the Will was not executed according to the statutory requirements.
In addition, the Administration and Probate Act 1958 allows for an ‘eligible person’ to make a claim against the deceased’s estate. An ‘eligible person’ is limited to a spouse, child, stepchild, former spouse (if former spouse is entitled to take proceedings against the deceased, or has commenced proceedings) or a child that believes he or she is a child of the deceased or was treated as a child. An ‘eligible person’ also extends to people that were dependent on the deceased, but are limited to a registered caring partner, a grandchild, a spouse or partner of a child or a person who was a member of the deceased’s household.
There are many factors the Court will take into account when determining whether to make a family provision order. The Court must have regard to the testator’s Will, any evidence of the testator’s reasons for making the dispositions in the Will and any other evidence of the testator’s intentions in relation to providing for the ‘eligible person.
The Court will be reluctant to interfere with a testator’s wishes and an ‘eligible person’ must show good reason why a deceased person should have provided for them in their Will.
Dying without a Will
If a person dies without a Will, or the Will is held to be invalid, the estate will be divided according to a statutory formula. This situation is known as intestacy and results in close family members receiving a particular proportion of the estate. It may also mean that a court will have to appoint someone to be administrator of the estate.
To ensure your wishes are carried out as desired, it is important for you to create a legally valid Will with our lawyers.