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Wills and Estates

A will, or testamentary disposition, is a written instruction about what you want to happen to your possessions when you die and who you want to implement that instruction. It can also include instructions regarding burial and what should happen to any assets you may hold on behalf of others as trustee.

If you die without a will, you die intestate, which means your property will be distributed among your next of kin in accordance with State legislation enacted to cover this eventuality.

There are other estate planning techniques you can use to transfer at least some of your property without resorting to a will. For example:

  • property that is jointly owned in equal shares by 2 or more people as "joint tenants", such as bank accounts and real estate, automatically reverts to the survivor(s) when one of the joint tenants dies
  • some contractual arrangements, such as life insurance policies, may permit the nomination of a beneficiary to receive the benefit of the contract upon the death of the contracting party
  • a trust can be established while you are still alive, which passes beneficial ownership of the trust assets elsewhere such that they will not form part of your estate when you die
  • you can simply gift assets away before you die.

A basic will must be in writing and should contain:

  • the name and address of the person making the will, known as the "testator", who must be at least 18 years old and have the mental capacity to make a will
  • a revocation clause, which revokes or rules out all earlier wills
  • the appointment of at least one "executor" (who may be a person or an organisation) to administer the estate in accordance with the terms of the will
  • statements that effectively dispose of all of your property to the "beneficiaries"
  • the date of the will, to avoid possible confusion as to which of several wills is in fact the last
  • an attestation clause, which provides for the will to be executed or signed by the testator in the presence of 2 witnesses, who must be over the age of 18 and should not be beneficiaries or the partners of beneficiaries under the will, and who must also sign.

The executor(s) will usually be one or more of the beneficiaries under the will, and more often than not they will be family members. To ensure that they are willing to do the job, ask them. You can appoint a public trustee or trustee company as your executor, or as a substitute executor if your nominated executor dies before you or is otherwise unable to perform the role, but you should be aware that they charge a commission, which can be several percent of the value of your estate.

You should store the original will in a safe place and keep a copy where it can be easily located by your executor.

Be sure to review your will from time to time. Circumstances and relationships change, so a will can easily get out of date and no longer reflect your intentions. Both marriage and divorce can have a big effect on a will, so it may be a good idea to make a new will in either circumstance.

It is not a good idea to try to alter a will by hand. You can change your will at any time by way of a further document called a "codicil", or better yet by making a new will and revoking your earlier will. To avoid possible future confusion, or even fraud, it is a good idea to destroy any out of date wills and codicils.

A will may be challenged if:

  • it was incorrectly signed
  • it has been tampered with
  • the testator did not have the mental capacity to make it
  • the testator was pressured to sign the will by others
  • the testator did not make "adequate and proper" provision for his or her dependents.

In some situations, State legislation has eroded the general principle that you have a right to give your estate to whomever you like. This is usually where the testator is found to have failed to make adequate provision for someone they were responsible for, such as children or their spouse or de-facto partner.

 

 

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