Should I make a Will?
YES. It is essential to make a Will if you are concerned about what will happen to your assets and belongings after you die. It is particularly important to make a Will if you have a family or other dependents. Even if you are a housewife with children and have not worked since you were married, you still need a Will. If you and your husband were killed together, for instance in a motor accident, the older person is presumed to have died first. If you were the younger person, you might have inherited assets from your husband - even though you were dead - but if you had not made a Will it would be left to the Court to decide how your assets and belongings are distributed.
What is a Will?
A Will is a legal document that names the people you want to receive the things you own - your property and possessions - at the time you die. These people are known as your beneficiaries. Your property and possessions include everything you own: your home, land, car, money in bank accounts, insurance policies, shares, jewellery, pictures, furniture, and so on. Making a Will is the only way you can ensure your assets Will be distributed in the way you want after you die.
Who can make a Will?
Provided you are of sound mind and at least 18 years of age, you can make a valid Will. A Will made by a person under the age of 18 is now not valid unless he or she is or has been married or the Court grants leave to make a will in terms disclosed to the Court, or the Will is made in contemplation of a marriage on the solemnisation of which the Will becomes valid.
What is a 'valid' Will?
A valid Will is one that will be accepted by a court and is able to be put into effect. To be valid your Will must be: In writing - handwritten, typed or printed. Signed - your signature should be at the end of the Will. Witnessed - two witnesses must be present when you sign your Will or acknowledge it and they too must sign in your presence but they do not have to be present together at the time they sign. If your Will is not made in this way it will not be enforceable, the court will not grant probate (confirm that the Will is valid) and your property will be disposed of as if you had not made a Will.
Can I make my Will myself?
Yes, you can if you wish; printed Will forms are available from stationers. There is no requirement that a solicitor draft a Will. However, it is not in your best interests to draft your Will yourself. There have been very many cases where homemade Wills were either not properly drawn up or were unclear. Many of these cases end up in court and carry on
"It is essential to make a Will if you are
concerned about what will happen to
your assets and belongings after you die"
for years, causing distress and perhaps hardship to the family of the deceased. In general, solicitors do not charge a large fee for making a Will. Since a Will is one of the most important legal documents you will ever make, it is false economy to try to do it without skilled, professional advice.
What happens if I don't make a Will?
The law provides a formula which sets out who is entitled to the property of a deceased person who does not leave a Will. The formula may not distribute your assets in the way you would have wanted. Furthermore, if you do not leave a Will, the legal procedures are more complicated and time consuming. This may cause expense, worry and even hardship to your family. It is not true that the Government takes a deceased person's property if there is no Will. This can happen only in exceptional cases where there are no close relatives or persons in a family relationship surviving the deceased. How can I make sure my wishes are carried out? You should appoint in your Will a person - called an Executor - to handle your affairs after you die. If you wish, you can name more than one person to act as Executor. You can choose anyone to be your Executor - your spouse, a relative, a friend, your solicitor - but you should first ask if they are prepared to take on the task and confirm with them that they have been appointed. Being an Executor is a very responsible position. The Executor has to obtain probate of the Will and pay any duties, debts or expenses before finally distributing the balance to the beneficiaries named in your Will. An Executor who is not a beneficiary may apply to the court for payment for his or her work as Executor.
Can I alter my Will if I change my mind?
Yes. You are free to alter your will at any time. If your circumstances change in any way, you can and should alter your Will. However, you cannot make an alteration by, for instance, crossing something out on the original will and writing in your new wishes. If the alterations are minor you can make a codicil (that is a separate document in which you change a provision in your Will) but it is usually better to make an entirely new will unless the change is a very simple one. A codicil must be signed in the presence of two witnesses, in the same way as when you make your Will.
If I marry, will that affect my Will?
If you made a Will before, you married, it will automatically be revoked when you marry, unless it was made with that particular marriage in mind, not just marriage in general. So, if you marry, it is more than likely you will need to make a new Will.
How might divorce affect my Will?
Any gift made to a former spouse in your Will is automatically revoked when a divorce decree becomes absolute. It is in your best interest to make a new Will or codicil if you are divorced.
Can I leave my assets to anyone I please?
Up to a point you can. However, you must make provision for your spouse and children, including ex nuptial children. If you do not, they can challenge your Will.
How can a solicitor help me?
Having a solicitor draw up your Will is in your interest because he or she will: Make sure your will is valid - that is, properly drawn, signed and witnessed. Make sure your wishes are clearly expressed in the Will. Make sure you have made, adequate provision for your spouse and children, or for any former spouse or any dependents. Advise you on choosing an Executor and on the Executor's right to be paid for his or her time and trouble. Advise you on the best way to arrange your affairs. Keep the Will in a safe place for you - usually without any extra charge.
When making your Will, you may wish to consider a donation to charity. Etheringtons Solicitors is a strong supporter of the Arthritis Foundation of NSW.
Contact: Paul Etherington or (02) 9963 9800
