What is a Will?

A Will is a legally binding document that clearly sets out your intentions of how you want your assets to be distributed after your death. A will looks after your loved ones and protects your assets, ensuring they are distributed according to your wishes. Even if you do not own property or have lots of money,  you may want to leave precious or sentimental items to certain people, including items like artworks, collector items, coins, jewellery, antiques, letters, or photographs.

Why do I need a Will?

A Will is arguably one of the most important documents you will create in your lifetime. A Will is an affirmative step you can take to achieve the following: 

  • Decide how your estate will be distributed: A Will is a legally binding document that ensures your property and assets will be distributed according to its instructions. Without a Will, there is no assurance that your intentions will be carried out. On the other hand, a Will can minimize doubts and confusions that could arise amongst your loved ones when there is no evidence of your wishes. 
  • Leave any special instructions you may have:  A Will allows you create special instructions such as who you would like to appoint to take care of your minor children, or who you like to care for your pet in the case something happens to you.. In addition, you can provide instructions for your desired funeral arrangements, and whether you choose to be buried or cremated.
  • Avoid larger legal challenges for your loved ones:  If you die without a Will, part of your estate may be passed on to someone you did not intend to, such as a previous spouse. This could mean your family and friends may have to go through expensive and costly legal disputes to challenge this.
  • Appoint an executor to carry out your instructions: A Will allows you to appoint someone you trust you carry out the intention of your Will and handle important tasks such as making sure all your affairs are in order; paying off bills, cancelling credit cards, and notifying the bank of other business affairs. Executors play a very important role in the administration of your estate, so it is important that you select someone reliable, honest, and trustworthy.
  • Make a gift to charity if you desire – The ability to make gifts and donations is a good reason to have a Will because it allows your legacy to carry on. 
  • Reduce government taxes – A will can help reduce the amount of Inheritance Tax that might be payable on the value of the property and money you leave behind.

What will happen if I die without a Will

If you die without a Will; this is called dying intestate. If you die intestate your estate will be distributed to eligible surviving relatives according to the rules of the Succession Act 2006 (NSW). This could be very different from what you intended to happen. The general order of inheritance is spouse, children and grandchildren, parents, and so on. This can be a challenging and arduous process for your loved ones that could be avoided by creating a Will before you die. If you don’t have any relatives alive other than your first cousin, your estate will go to the government. 

This is not ideal as most people would like their assets to be distributed to loved ones in accordance with their wishes rather than the provisions of a government act, but this is not possible if they did not get around to making a Will.

Is a Will only for old people?

There is no particular age when you are required to make a Will. Anyone over the age of 18 can have a Will, but there are certain exceptions. The person must be of sound mind.  A person with a mild intellectual disability or in the early stages of dementia may also be enabled to make a Will if they have capacity at the time the Will is formed. If their capacity is in doubt, an assessment of their understanding needs to be made by an appropriate person, such as a medical practitioner, psychologist, or psychiatrist. 

In many cases, people hold off from writing a Will for far too long. Once you have children it is especially important that you have a Will. People are often encouraged to write a Will after someone close to them has passed away, especially when they have to handle the estate. However, it is always important to organize your Will sooner rather than later.

Can my Will be challenged? 

A challenge to the validity of a Will is not unusual in practice. Challenging a Will can be done on a number of grounds, including that the Will-maker lacked testamentary capacity to prepare the Will, or the Will did not represent the Will-maker’s intentions for a variety of reasons, including fraud, forgery or undue influence.

Alternatively, you may challenge a Will in New South Wales on the basis that you have been left with inadequate provision from an estate and may therefore bring proceedings to seek a family provision order under the Succession Act 2006 (NSW).

You can prevent a legal challenge against your Will by ensuring you have a carefully drafted a valid Will.

For more information on Estate Planning, reach out to the team at Executive Legal. We can happily assist with all of your testamentary needs.