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The simple fact is that most people should have a Will. If you have a spouse, children, assets or liabilities, you shoul...

Our Wills Team

Elliot Ryan
Senior Associate
Junior Lawyer
Junior Lawyer

Frequently Asked Questions

What is a Will and why do I need one?

A Will is a written document that expresses your wishes as to how you would like your property to be distributed after you die. A Will is also a legal document which means that it must comply with certain requirements to be valid. Your Will names persons, or organisations, (known as your Beneficiaries) who will receive your property. Your Will nominates a person, or persons, who is tasked with carrying out your wishes (known as your Executors).

You need a Will to confirm your wishes, for estate planning purposes, to minimise family disputes, to create testamentary trusts, and to nominate Guardians who are tasked with caring for your minor children.

Who can make a will?

You can make a Will if you are 18 years and older, and if you have the required testamentary capacity. In some limited circumstances, people under 18 years can also make Wills.

How do I ensure that my Will is valid?

Your Will must:-

  • be in writing, either typed or handwritten;
  • contain your signature which was made or acknowledged in the presence of at least two witnesses, all present at the same time;
  • contain the witnesses signature, and signed in your presence; and
  • be made with the intention of executing the Will.

In some instances, the Court will accept an unsigned, or partially signed, Will. However, such instances require an Application to Court, and your Executor will have to seek legal advice and spend additional costs. We therefore recommend that you seek legal advice before signing your Will.

What happens if I don’t have a Will?

If you don’t have a valid Will then your Estate will be distributed in terms of the intestate rules. This means that your Estate will be divided amongst your relatives in accordance with a pre-determined formula under the Administration Act 1903. Dying intestate can result in your surviving spouse, children and family suffering unnecessary financial hardship and emotional stress.

What happens if I die without a Will and I am in a de facto relationship?

If you die without a Will, then your bona fide de facto partner is treated as your spouse under of the Administration Act 1903. However, they will have to prove that they were in fact your de facto partner.  Under the Administration Act, you have a de facto partner if you lived as de facto partners for a period of at least 2 years immediately before the date of your death. In terms of the Interpretation Act 1984 other factors may prove the existence of a de facto relationship, such as the degree of financial dependence, ownership of property, and whether you had any children together.

If you die, leaving a husband or a wife and a de facto partner, then all of them are entitled to benefit from your Estate. The situation is more complex and your de facto partner will have to seek legal advice.

What happens if I die without a Will and I am in a de facto same sex relationship?

Under the Administration Act, same sex de facto relationships are treated in the same manner as all other de facto relationships. Your same sex de facto partner will also have to prove the existence of the de facto partnership. The fact that you were of the same sex is irrelevant and does not mean that your same sex partner has to prove more than others partners have to.

Can I prepare my own Will or use a do-it-yourself Will kit?

You can make your own Will, or use a Will-kit. However, we don’t recommend this method as it often causes problems.  You might create a defective or an invalid Will without realising it. If this is the case then your Executors will have to apply to Court to interpret your Will, which can deplete your Estate funds, especially if there is a dispute about your intentions. Ambiguous wording is extremely common in home-made Wills. In the case of Rogers v Rogers Young [2016], Master Sanderson aptly said:

“On numerous occasions when dealing with so-called homemade wills, I have observed they are a curse. Homemade wills which utilise what is sometimes known as a ‘will kit’ are not much better. This case proves the point. The disposition effected by the will is not complicated and no doubt the testator had clearly in mind what she intended to achieve. But the way the will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.”

Can my Will or my Estate be Contested?

Your Will may be challenged if it is proved that you did not have the required testamentary capacity when you signed your Will, regardless of whether the distributions under your Will are fair. It will be presumed that you had testamentary capacity, therefore if someone challenges your capacity then they will be required to prove otherwise. The same will apply if you signed your Will under duress or undue influence.

Your Estate, on the other hand, can be challenged by your beneficiaries, or potential beneficiaries. The law allows a Court to vary your Will to enforce your moral obligation to adequately provide for the maintenance and support of your family and financial dependants. This is called family provision claims. If, for example, you leave an eligible claimant out of your Will, they have a right to make a claim for greater provision out of your Estate.

Depending on the circumstances, an eligible claimant may include:

  • Spouses (including de facto partners);
  • Children;
  • Former spouses;
  • Step-children;
  • Grandchildren; and
  • Parents.

If your Executor is notified of such a family provision claim then they should not distribute your Estate until the matter has been resolved. It is prudent that you obtain proper advice if you are considering leaving an eligible beneficiary out of your Will. There are ways to address this issue prior to you death.

What can I include in my Will?

Your Will can be very general. For example, you can leave your entire Estate to your partner or children, or your Will can be more specific. What you include in your Will is entirely up to you. Your bequests in your Will will be enforceable in relation to property that you own. For example you should not distribute property owned by another entity, such as a Trust or Company. These bequests will not be enforceable. If you own property in joint tenancy with someone, then that person will receive the property when you die. Generally, your Superannuation is not included in your Estate unless you have nominated your Estate as the beneficiary. Some Trustees of Superannuation Funds may also decide that your benefits will to be paid into your Estate. Superannuation is complex and a specialised area of law and tax. We therefore recommend that you seek advice from your Lawyer, or Accountant.

What is an Executor?

In short, your Executor is a person, or institution, appointed by you to carry out the wishes in your Will. The first task of your Executor is to obtain a Grant of Probate from the Supreme Court. Your Executor may not act without such a Grant. This involves an Application which should ideally be made with some assistance from a Lawyer. If your Estate is straightforward then your Executor will be able to obtain the Grant without any assistance. During the administration of your Estate your Executor will be bound by the provisions of the Trustees Act. Your Executors will be required to complete certain tasks and they have specific powers. The Executors should be aware of their appointment and we recommend that you discuss this with them before nominating them in your Will. Your Executor should be trustworthy and not easily influenced or pressured. Beneficiaries may have unrealistic demands, or fight amongst each other, and your Executor should be able to deal with that stress. 

What is the position if there are two Executors and they don't agree to work together to obtain a Grant of Probate?

If a disagreement between your Executors cause a delay in the Application for the Grant of Probate, then one of them can give the other notice that they intend to apply and call on them to join in the Application. If the other Executor fails to respond then the first Executor may proceed to apply, with leave being reserved to the other Executor to come in at a later stage. If one of your Executors decide that they do not want to be an Executor they may formally renounce their appointment. If the Executors continue to disagree then the matter will become contentions. In this instance only a Registrar, or Judge, may decide who the Executor will be.

If the Executors disagree on how to manage the Estate once the Grant has been made, the Executor can apply to the Court to resolve the dispute. An easier and more cost effective option is for you to nominate a third party who can resolve disputes between Executors.

What is a beneficiary?

A beneficiary is a person, or institution, who you nominate to receive your property when you die. It is important that your beneficiary is correctly named, easily identified and that it exists, if it is an institution. If, for example, you nominate a charity, then it would be wise to make provision for an alternative charity.

Minor beneficiaries will not be able to receive their inheritance until they have reached 18 years, or until such age as you have specified in your Will. It is irrelevant if a child has been adopted as an adopted child has the same rights in relation to their adoptive parents as a natural child born to them.

Who should be appointed as a Guardian to my minor children?

Unlike popular belief, a child’s Godparent does not automatically become their Guardian when their parents die. A Guardian is a person appointed under a Will or by the Family Court. A Guardian is tasked with the care and welfare of your child and with making important lifestyle decisions until your child turns 18 years. A Guardian should be someone who you trust to raise your child. You should also consider whether you wish to give an allowance, or a lump sum fund, to the Guardian for accepting the responsibility of taking care of your child.

Although appointing a Guardian in your Will makes your intentions clear, it is not binding. The Family Court has an overriding discretion to appoint a different Guardian or to remove a Guardian where it considers this to be in your child’s best interest. Nevertheless, we recommend you appoint a Guardian in your Will. The Court will only go against your wishes in limited circumstances.

A Guardian and a Trustee of a Testamentary Trust is not the same and they have different roles. However, it is common for testators to appoint the same person for both positions.

When should I review and my Will?

Ideally you should review your Will every three to five years to check on the details and to ensure that your wishes are accurately reflected. You should also review your Will when there are:

  • Changes within your Family;
  • Changes to your Assets; and
  • Changes to the Law.

We also recommend that you amend your Will if your Executors have died, or if there is an indication that they will no longer be able to fulfil that role. The same applies to Guardians and Trustees who you have nominated in your Will.

If I get married or divorced does that affect my Will?

This is an important question and commonly overlooked. Marriage and divorce will render your current Will invalid. The creation of a de facto relationship and the break-up of a de facto relationship on the other hand, does not invalidate a Will.

If you are planning to get married we suggest that you make your Will in contemplation of such marriage. This will means that your Will would be enforceable after such marriage. The same will apply when you are in the process of a divorce.

Where should I store my Will?

It is an urban myth that there is an automatic Wills registry where all original Wills are kept. It is your responsibility to ensure that your Will is kept in a safe place, such as with your bank or with your lawyer. We also recommend that you advise your Executors of where your original Will is kept. It is also important that your original Will is not marked in any way. It may be regarded that you intended to revoke your Will if there are lines, scratches, or any other markings on it.

What is a Deed of Wishes?

A Deed of Wishes is a separate document, ordinarily kept with your Will. A Deed of Wishes states your detailed wishes which will assist your Executors and Trustees with the administration of your Estate or a Testamentary Trust. Generally a Deed of Wishes would guide the Trustees of a Testamentary Trust, particularly if you have created a discretionary Testamentary Trust in your Will. It typically includes how they should deal with the capital and the income of the Trust, whether they should treat all Beneficiaries equally, and how to deal with Beneficiaries who have a disability or problems with addiction.

Does a Will need a Grant of Probate or Letters of Administration before assets of the deceased can be dealt with?

If your Estate is worth less than a certain amount and if you did not own real property, then your Estate can be administered without a Grant of Probate, or Letters of Administration. Motor vehicle transfers and bank accounts may be dealt with by producing a copy of your Will, a copy of your death certificate, and proof of identity of your Executor. However, obtaining a Grant of Probate will offer your Executor more protection.

Where there is no Will then, subject to production of the death certificate and evidence of the identity of the next of kin, generally payment will be made to the next-of-kin who will then be liable for payment and distribution to the persons entitled pursuant to the Administration Act.

How much does a Will cost?

Fees for drafting Wills differ from firm to firm. However, at Butlers we offer various packages. Packages for simple Wills start at $600.00, plus GST, per person. However, it depends on the complexity of your matter.  If you have any questions, or if you would like to obtain an estimate of our fees, then please call the Team at Butlers, at no charge.