Will Facts

Below are few quick Will facts aimed to answer all your questions.

Each State and Territory has its own laws regarding Will administration so check with your “will maker” what’s relevant to you.

Remember you must speak with a solicitor who specialises in Wills/Estate Plans from your region for the correct information. Laws do change.

Will kits may be a cheaper way for you, but there are a lot of things that can, and do, go wrong with home-made Wills. Delays, uncertainty and substantial legal costs to the Will maker’s family. Visit the Law Society’s webpage to find out more.

Most people use excuses such as, making a Will is too complicated, too expensive, I haven’t got anything, I don’t have time, I’ll do it when I get a job, I’ll do it when I’m married or buy a house… In actual fact, the right time to get a Will is as soon as you turn 18!

Q1 – Understanding words solicitors use

  • Intestate means you die without a Will and you have no say on who gets your estate. The legal system decides how your estate is distributed.
  • Testate means you have spelled out your intentions completely and legally with a valid Will at the time of death.
  • Testator is a person who has made a valid Will, which is in effect at the time of his/her death.
  • Estate/Assets refers to what you own, your belongings, money, savings in the bank, jewellery, tools, utes, cars, motor-bike, boat, furniture, electronic devices, house, unit, superannuation, inheritance either from parents/grandparents or anyone.
  • Litigation is the term used to describe proceedings between two opposing parties (people) in a court of law.
  • Contesting a Will means a person or persons wishes to dispute, or thinks they are entitled, to your estate.
  • Executor is the person or persons who you nominate to distribute your estate as per your Will.
  • In today’s society the way we speak and use certain words can have a totally different meaning in a court of law. What you believe to be correct, may not be in the court of law.

Q2 – I’m not old so why do I need a Will?

Having a Will is not a matter of age but a matter of good common sense and should always be considered seriously by any person. Don’t think what you think will happen once you die, is what will happen in a court of law.

  • Do you have/had a full or part time job?
  • It’s compulsory for your employer to pay superannuation which may have a life insurance attached. It could be up to $200,000.
  • Do you have assets?
    (e.g. car, motorbike, boat, jet-ski, jewellery, tools, pet, electrical gadgets, house, iTunes account)
  • Do you have parents, siblings, grandparents, kids, blended family, partner girlfriend, boyfriend, de facto, no relatives, wife, husband, mental illness/disability?
  • Do you have an on and off relationship? (even weeks or months dating or living with them)?
  • Is she/he a partner or friend in YOUR eyes?
  • Do you care for your family or loved ones?

The adverse effects of dying without a Will (intestate) apply whatever your age at death. They are particularly negative if you are a young person with children. It is a sad fact of life that none of us know what the future holds and accidental or early death can occur. Whether someone has died from accidental death, long or short term illness, or suicide, if they have died without a valid up to date Will, laws will dictate how the estate will be distributed. Wouldn’t you want to have a voice if you’re not here?

Q3 – What is a Will?

It is one of the most important documents you need in your life.

A Will is a written document in which you state how you want your property distributed after you die. A person who makes a WILL is called a “testator” or a “testatrix”. Making a Will allows you to choose what happens to your assets after you die. It also allows you to nominate an Executor, who is the person responsible for making sure your wishes are met. Not the courts.

A Will shows you are responsible, taking control of your life and caring for your family and loved ones.

Q4 – I don’t have a WILL….What is wrong with that?

Without a Will a person’s estate may be administered by someone the deceased didn’t want to handle their affairs and assets may be distributed to persons not intended.

In simple terms, a Will lets the Courts know what your intentions are, when you die. A Will can also be designed to encompass a range of requests including:

  • Providing for children from a previous relationship
  • Providing for children with special needs
  • Excluding immediate family/ex-partners/de facto/ex-girlfriends/ex-boyfriends
  • Guardianship of your children
  • Assets that do not form part of your estate (such as family trust assets)
  • How to best meet your charitable objectives.

If both parents died who would look after your children? Which grandparents? Or would it be a sister/brother or a friend ?

Your family is grieving the loss of their loved one, you need to ease their pain by making a legal Will. It will make the process easier for your loved ones. This will save time and money for your family.

Would you want an ex to receive your estate? Make a Will today.

Everyone has something. Don’t say you have nothing to leave in your Will.

When money is involved you see the true side of people, make a Will today.

Q5 – Can Wills Be Contested?

Yes, but having a properly drafted Will ensures that all the assets of a deceased are distributed in accordance with their intentions. Even though a Will can be contested, it is better to have one than none!

  • It reveals the true intention of the testator.
  • It assists in showing why a person has been included or left out of a Will.
  • A properly drafted Will also minimises the possibility of litigation after an unexpected death of a loved one. This saves money, time and helps bring closure to a deceased’s family.
  • A valid Will avoids distribution pursuant to the laws of intestacy, which may not conform to the wishes of the deceased.
  • The administration of an estate, where there is a valid Will covering all assets, is also generally faster and less costly than an administration of an estate without a Will or a poorly drafted Will.
  • Consulting a professional about executing a Will informs individuals about what assets they have, and often causes them to realise assets that they may have been unaware of. This provides young people with an insight into their current financial situation and financial potential.
  • These days people have on and off relationships for short periods of time. The words we use now have a different meaning in a court of law.That’s why if you make YOUR WILL from one of our supporting Law Firms YOU will be contacted at the age of 21 and 25 to see if your circumstances have changed.

Q6 – Who can contest a Will?

Will disputes are on the rise near 60% between 2005-2013.

Even though people can and do contest a Will, if your Will is written correctly and updated then your voice will be heard.

People who can contest your Will are not restricted to your spouse and children.

Any one of the following people may be entitled to claim from an estate:

  • Parents
  • Grandchildren
  • De facto partner
  • Girlfriend/boyfriend “is someone your partner or just a friend?”
  • Former spouses/de facto partners
  • Your ex girlfriend or boyfriend
  • Relatives
  • Friends

The person needs to convince the Court that they should receive a share or greater share of your estate. Remember, you aren’t here to say what you want. Make a Will and keep it updated.

If a claim is made, it is up to the court to decide if the Will (or if there is no Will, the law relating to intestacy) has made adequate provision for the claimant. If not, the court may order that provision be made out of the estate.

If you are excluding any of these dependants from your Will, it is important that you record the reasons why by either inserting a clause in the Will, or alternatively, placing a signed statement with the Will.

In the event of a claim, your views will be considered by the court when making its decision.

However, there is no guarantee that the court will not award part of the estate to the claimant. The court’s powers in such cases are in-part discretionary.

If you appoint the Public Trustee as your Executor, they will take a neutral role in the court proceedings and leave it to the court to make a decision. It is the usual practice of the court to join the beneficiaries as parties to the action. They are then given the opportunity to oppose the claim.

If you have a solicitor draw up your Will, you have the choice of who or whom will be your Executor.

Q7 – Do I need to change my Will if my circumstances change?

Your WILL needs to be updated as your circumstances change. Marriage, divorce, de facto relationships (as in some States or Territories, it could be only weeks or months with someone….. because it is at time of death), normally revokes an existing Will. The birth of a child, the acquisition of new assets, or a blended family are just some of the other events when your Will should be reviewed and a new WILL prepared.

This is why if you make a Will through one of our sponsored law firms from Will It Your Way they will contact you at 21 and 25 to ask if your circumstances have changed. We all know life gets busy, so we are here to help you.

The fact is, circumstances and relationships change and this will have an impact on your Will. Unfortunately, case law shows that challenges to Wills are on the rise and in a lot of circumstances, could have been avoided by simply reviewing and updating the existing Will.

Q8 – What happens if you die without a Will?

If you die without a legal Will, State/Territory law determines how your estate is distributed. In most situations your closest relatives will share in the estate you leave behind. This is not always the case though, other people may put in claims on your estate. Remember you’re not here to be heard so your wishes may not be carried out the way you assume.

  • The court has the right to determine who will be granted administration of your estate
  • The court may grant administration to a person or organisation you do not want managing your affairs
  • The net value of your estate will be shared between your living relatives according to State/Territory law

There are many disadvantages to not writing a Will:

  • You will have no say as to who will benefit from your estate
  • No distinction is made between able and disabled beneficiaries when no Will is present
  • Your estate may take a long time to settle and may cost significantly more than if you have a Will
  • You aren’t here to say who you want to leave your estate to. Don’t assume anything in this world.

Make a Will and be heard.

Q9 – Who can make a Will?

If you are over 18 years of age and have legal capacity, you can make a Will. You can also make a Will if you are under 18 years of age and are married, or with consent from the court. To have the legal capacity to make a Will, you need to understand what a Will is and what it does, what property you own, who is important to you, be able to consider any claims that may be made against the estate, and be of sound mind.

Making sure your Will is up-to-date and legally sound is the best way to help ensure your assets are protected and your wishes are carried out.

This is where our participating law firms can help you.

Q10 – Should I have the conversation with my family about getting a Will?

Every family’s legal needs are different, but perhaps the most important step is starting the discussion. Talk to your family about scenarios that may apply to your lives and explore ways to be better prepared.

It’s important to know that processes and laws for powers of attorney vary by State/Territory, so be sure to research your specific situation in your area.

By creating a solid foundation for your estate planning, from a last Will to a living trust, future additions or changes to your family’s circumstances won’t feel as daunting when the time comes. After all, life never slows down and no-one is invincible.

TAKE CONTROL OF YOUR LIFE!

HAVE YOUR SAY TO PROTECT YOUR FAMILY AT A TIME OF HEARTACHE.

Q11 – Why is it very important for Aboriginal people to have a Will?

Aboriginal People have the lowest rate of Will-making in Australia. Professor Prue Vines has written a book titled Aboriginal Wills Handbook to explain why making a Will is very important for Aboriginal people and to provide practical guidance to legal practitioners about how to make a culturally appropriate Will.

Download the Aboriginal Wills Handbook to get all the information.

If you’d like more Will facts

Contact your Public Trustee or Law Society in your State or Territory.

Legal Disclaimer

No content contained on this website is intended to be provided as legal advice. It is intended to provide general information only. You should obtain formal legal advice specific to your own situation.