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Wills

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A person who dies without a will is said to be "intestate". In the case of intestacy, it becomes the responsibility of the relevant state government to distribute the estate's assets and this may not be in accordance with your wishes.

 

Professionally drafted wills are preferable, however any will is still better than having no will at all.  With or without a will, it is important to understand that estate law varies from state to state.

 

Nowadays, we are seeing more failed relationships and extended families, which means estate planning is becoming more and more complex.  Your wishes and instructions are always subject to challenge however a well drafted will can help to reduce the likelihood of a successful challenge.

 

Certain assets, such as "jointly owned" assets, trusts, company assets and usually superannuation,  are not included in your estate and are therefore protected from challenge by potential beneficiaries.

 

 

  • The person making a will is known as the Testator.


  • A will must be in writing and the testator must be aged 18 or over.


  • The testator's signature must be witnessed by two Witnesses, preferably using the same pen, and all must be present during the signing process.  It is also advisable for the  testator and witnesses to sign at the foot of each page. 


  • The people who benefit from a will are known as Beneficiaries.  It is preferable that beneficiaries do not witness the will.  (In some jurisdictions beneficiaries can be disqualified if they are also a witness).


  • The testator must appoint a trusted person or persons to be the Executor, who may also be a beneficiary.   The executor's duty is to administer the will and manage the distribution process following the death of the testator.


  • To avoid any misinterpretation it is helpful for you to explain your intentions in detail to your executor.


  • The executor should have a copy of the will and know how and where to obtain the original when required.


  • The pages of a will should not be stapled together and nothing should be pinned or stapled to the will.  If there are puncture marks on the paper it could be construed that something has been removed.


  • Avoid vague, confusing or unnecessarily restrictive instructions in your will and avoid unduly restricting the executor.


  • Beware of making specific gifts as these may change or may no longer exist at the time of death many years into the future.


  • Beware of charges such as mortgages, for example.  State you intentions as to whether the mortgage should or should not be cleared prior to distribution.


  • Consider inclusion of disaster clauses in the event that all beneficiaries die together.


  • If there are young children, be sure to provide instructions in relation to preferred guardians and to make provision to cover guardian’s reasonable expenses.


    Last updated March 30, 2013    

Last updated April 8, 2017




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General Advice Warning: The information is general in nature and may not be relevant to your individual circumstances, you should not. therefore, rely or act on this information without first obtaining suitable professional advice. This site is intended for Australian residents only.