BUTLERS

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 are 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.

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.

There are several factors that determine if your Will is valid and legally binding. Our team are experienced in navigating the complexities surrounding making a Will a valid document. Contact us if you would like to ensure your Will is valid and expresses your wishes, clearly

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.

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.

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.

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.”

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 dependents. 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 your death.

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 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.

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. 

If a disagreement between your Executors causes 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 contentious. 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.

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.

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.

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.

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.

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.

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.

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 the 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.

Fees for drafting Wills differ from firm to firm. However, at Butlers, we offer various packages that depend 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.

A Will is the only way for you to be certain that your Estate is passed to your loved ones after you die. It gives security to those who are close to you, to know that they will be taken care of. A Will allows you to appoint a person of your choice to be the Executor of your Estate. This Executor is tasked with administering your Estate in accordance with the terms of your Will.

Your Will can appoint guardians of your children under 18 years old and arrange for maintenance and education of any underage beneficiary.

If you die without a valid and current Will, your Estate will be distributed under the Administration Act, and not necessarily in accordance with your wishes.

Estate planning makes sure that the transfer of an Estate to another generation is done successfully so that the greatest amount of your Estate is passed on, minimising taxes and the involvement of the Courts.

If you do not have an effective Estate plan, you risk your Estate being depleted by taxes and costs, thereby minimising the amount that your beneficiaries ultimately receive.

At Butlers, our aim is to see every adult Australian with a current, tax-effective Will. The Lawyers at Butlers know that sufficient Estate planning is necessary to meet the needs of those left behind, and that it is of the utmost importance to you that your Estate goes where you want it to go.

We are concerned that generally, Australians are not advised on the dangers of not having a current and effective Will.

Estate planning ensures that the passing on of your assets is as painless as possible, and we know how important it is to look into things such as:

• Family Trusts

• Self-Managed Superannuation

• Business Structures

• Companies

• Your Spouse, Children and Grandchildren

• Whether you intend to leave someone out of your Will

Wills planning and Estate planning, as well as the Administration of Estates, are services that Butlers prides themselves in, providing quality advice on the handling of taxation, insurance, asset protection, business structures, personal liability, and discretionary trusts.

Do you have maximum protection for you, and your family?

Are you aware of the steps to protect family assets from claims and to ensure they're passed on in the way you want?

Is your current Will more than 5 years old?

Your Estate may be at risk.

Contact us to get your Estate planning handled properly. Wills planning and Estate planning will give you a better peace of mind and a more secure future for those close to you.

Briefly, a formal Will refers to a Will which meets certain legal requirements which are outlined in the Wills Act 1970. Some (but not all) of these requirements are:

• your Will must be in writing;
• your Will must be signed by you in the presence of two adult witnesses; and
• your Will must revoke any former Wills.

A document may record a person’s testamentary intentions and not meet these requirements. Such a document is referred to as an Informal Will.

The Court may dispense with formal requirements in certain cases. For example, if the document which seems to be the Will of a deceased person has not been executed in the manner required by the Act.

The Court must be satisfied on a balance of probabilities that the person intended for that document to constitute his /her Will. When considering if a document is an Informal Will, the Court will consider any relevant evidence relating to the testamentary intentions of the person and the manner of execution of the document. If the Court is satisfied that the Informal Will is the Will of the deceased then it will be valid as if it had complied with the formal requirements from the onset.

However, there has been a number of Supreme Court decisions that show how difficult it is to prove an Informal Will. Proof of intention to make a Will is simply not enough. The evidence must show that the deceased intended for that specific document to be his/her last Will.

Honourable Justice Hill considered the legal principles in Crisp v Australian Rotary Health Research Fund [2019] WASC 486 at paragraph 9 -11:-

‘For a document to constitute a Will, it is necessary that there be cogent evidence that the document embodied the deceased's testamentary intentions and that the draft was adopted and authenticated by the deceased. This is true for documents invalid by reason of there being only one attesting witness to the document.

In forming its view, in addition to the document said to constitute the Will, the court may have regard to any evidence relating to the manner of execution or testamentary intentions of the deceased, including evidence of statements made by the person.

It is not, of itself, sufficient that the document represents the deceased's testamentary intentions. It is necessary that the document is intended to be the legally operative act which disposes of the deceased's property on his or her death.’

In this case, the document was signed by the deceased but was witnessed by only one witness and not two as required by law. The Court considered whether:

1. the document purports to embody the deceased's testamentary intentions; and
2. the deceased intended that the document constitute his will.

The deceased was estranged from his family for a number of years and bequeathed his entire estate to the Australian Rotary Health Research Fund. After considering the evidence Honourable Justice Hills found, on the balance of probabilities, that the disposition embodied the deceased's testamentary intentions.

Secondly, the document was prepared by a lawyer on instruction from the deceased and was headed “Last Will and Testament of …”. The Court was satisfied that the intention of the deceased was that the document have effect as his Will.

Unfortunately, not all cases are as straight forward as this one. At Butlers, we can help you in assessing the evidence and assist you with preparing an Application to the Supreme Court, if you believe that someone who you know, has left an Informal Will.