Updated: Dec 2, 2021
Photo Courtesy: John Jennings Collected from Unsplash
A Will is a very useful device to secure the future of your loved ones. It helps you to control the future of your assets after you pass on. It also enables you to communicate your last wishes to your family and friends. A Will is a written legal document that you can prepare to give your instruction about what do you want to happen to your property after your death. A Will contains your wishes and the instruction for the person/persons or organisation distributing your property. It gives you the ability to control which of your assets goes to whom and about how this is to happen. It provides you and your family with certainty and the future security of your loved ones.
There are a few things you should know before you make your Will. It will help you to make sure that your Will serves the exact purpose you will want it to. Following are the important points you need to know about a Will:
1. Who can make a Will?
Anyone over the age of 18 years of age can make a Will. However, he/she needs to have the mental capacity to understand what he/she is about to do and the effect of such action. Therefore, if a person makes a Will when he/she is not capable of understanding the nature and effect of the document, it will not be considered a valid Will.
A person under 18 can only make a Will if they:
are authorised by a court order to make a Will.
2. What are the things that you can leave in a Will?
You can bequeath your estate through your Will. Your estate includes any property that you own at the time of death, including cash, savings and investments.
Your Will may include:
assets, such as real estate, cars, money, shares, dividends;
rights and powers, such as the power to appoint the trustee of a family trust, the right to perform your last rituals etc;
specific belongings such as jewellery, furniture, books, photos, antiques, paintings. If you list specific items, please make sure that they are easily identifiable.
You can also include other matters in your Will, such as:
how you would like your remains to be dealt with;
who you would like to be appointed as guardians of your minor children (although the court makes the final decision)?
3. What are the things that you cannot leave in your Will?
Some assets cannot pass from the deceased to another person through a Will. Therefore, the things you cannot leave in your Will include:
property owned as joint tenants, called 'passing by survivorship';
assets from your superannuation or insurance fund. Usually, you are supposed to nominate a beneficiary when you take out the policy;
assets that are held in family companies or trusts. Although you control those assets when you are alive, you do not own those assets. Therefore, those assets cannot be directly distributed through your Will. The Will must pass the control of the company or trust to other trustees or some other beneficiary.
4. What should you do to make a valid Will?
To make a valid Will you must:
Written document – To make sure that your Will is a valid one, you have to make the Will in writing;
At least two witnesses- To ensure the validity of the Will you must sign the Will in front of two or more witnesses. The witnesses must also sign the Will when you are present. You and the witnesses must sign the Will:
at the foot of each page, if there are multiple pages
using the same pen;
You should also make sure that the document is dated at the time of the signing.
Mental Capacity- To make a valid Will you must also have testamentary capacity. This means that you are not suffering from a disorder of the mind or sane delusion.
The test for testamentary capacity is that you must know and understand:
what a Will is;
nature and the effect of the Will;
approximately what you own to leave in a Will (you don’t need to know the exact value);
any reasonable claims that may be made against your property, for example, a claim by someone who is financially dependent on you.
5. What can you do to avoid a challenge to the Will?
If there is something unusual about the signing of the Will, you can get an affidavit to prevent possible problems or challenges later.
For example, you can get a doctor to assess your mental capacity and sign an affidavit about your capacity at the time you made your Will.
An affidavit should state that the doctor is confirming after examination that,
you are of sound mind, and
you understood what you were doing when you signed the document.
This may prevent a later challenge to the Will.
You should make sure that the doctor is experienced in making these assessments. The doctor to witness the Will being signed.
6. How can you change your Will?
You can change your Will as frequent and as many times as you wish. You can amend your Will by adding a codicil. However, it is advisable to make a new one if you want to change your Will to avoid complications. When you make a new Will, it automatically cancels your old one.
Codicils are only used to make minor changes to a Will. If you add a codicil to an existing Will, you must make sure that what you add doesn't:
contradict parts of the original Will.
If the codicil causes confusion, it may be deemed invalid.
7. When you should change your Will?
The nature of your relationships may affect how your estate is distributed.
You should consider making a new Will in the following circumstances:
Marriage – You should change your Will if you get married after making it. Marrying or remarrying automatically cancels your Will unless your Will clearly shows that you were planning this marriage when you made it.
Divorce- There are specific legal rules about how your Will operates if you get a divorce. Generally, if you get divorced, your Will takes effect as if the divorced spouse had died before you. However, it is recommended that you should change your Will when you are divorced or separated.
Increase of Asset- you should change your will if you have bought a significant asset or made investments after making your Will.
New Business, Company or Trust- It is advisable to change your Will if you get involved in a new business, company or trust after making your Will. Your latest Will should include your all significant assets.
A Will helps you to look after the interest and future of your loved ones after you were gone. It is very important to get your Will right to secure the future of your family. If you want more information on Will or want help to find the right legal advice and assistance to make your Will, please contact us on www.lawcircuit.com.au or call us on +61418631798 or email us at firstname.lastname@example.org. We are here to make your legal journey easy and convenient.