Some do's and don’ts about Wills
Young people don't need wills
Young people, particularly in their 20s and 30s, often do not make wills because, first, death seems a long way away and, secondly, they don’t believe that they have any significant assets to leave. That overlooks the fact that most superannuation funds have a death benefit which may be considerably more than the value of the member’s interest in the fund. While the fund owner should sign a binding death benefit nomination with the fund, it is also wise to have a Will, specifying where the person’s estate is to go.
What about married/de facto couples and real estate?
Couples often do not realise that when they buy a home or an investment property, unless they advise their solicitor or conveyancer otherwise, the property will usually be put into their names as joint proprietors.
That prevents either party from leaving their interest in the property to anyone other than their partner. If that is not the desire of the couple then they should be registered on the title as Tenants in Common in equal, or unequal shares. This enables each party to leave their share to whoever they wish. The same applies to joint bank accounts – any joint assets are passed to the surviving joint owner, irrespective of any will.
What about married/de facto couples who don’t leave a Will?
If there is no Will then, apart from joint assets in Victoria, the first $100,000 plus 1/3rd of the estate goes to the partner and 2/3rds of the remainder goes to the children of the deceased. If there are no surviving children, the 2/3rds goes to the grandchildren. If there are no children or grandchildren, then the whole of the estate goes to the surviving partner. The Probate Office requires proof of a De Facto relationship if the parties are not married.
If I want to exclude a child or other close relative from my Will, can I give them a token amount which will prevent them from challenging the Will?
No. Like it or not, the Supreme Court Judges have the power to effectively re-write Wills if they believe that there has not been a just and equitable distribution of the deceased’s assets.
While each case is dealt with on its merit, the financial circumstances of the person who received an unequal share of the estate will be important – if they are financially comfortable, the Will is unlikely to be re-written by the Court in their favour, whereas if they are struggling financially, they are likely to get a larger share.
Lawyers are too expensive, I will do a “Newsagency Will”
Not a good idea – a lot of things can go wrong with Will forms bought from Newsagents or Will kits. There are strict requirements about how a Will is to be signed and witnessed – the person making the Will (still, charmingly, called the Testator, if a male, or the Testatrix, if a female), must sign the Will in the presence of two witnesses, neither of whom are to benefit from the Will – they must all be present at the same time, use the same pen and sign all the pages. The forms are not easy to follow and if not completed properly can change the intention of the Testator/Testatrix.
Other things that can go wrong with D.I.Y Wills
Not properly dealing with the remainder of an estate not mentioned in a Will, not making provision as to who is to receive the estate, or part of it, if the beneficiary dies before the Testator/Testatrix and not revoking an earlier Will are all possible causes for the Will not to give effect to the intentions of the person making it.
What about Wills and Family Law?
People involved in relationship breakdowns often forget that separating from their partner does not automatically invalidate their existing Will. It is most important that separating couples consider, as soon as practicable after the separation, whether they want their existing Wills to apply in the event of their death.
Typically a married or defacto couple will leave their estate to their partner. Following separation they will usually wish to change that to make the children the main beneficiaries of their estate. Again, remember that jointly held assets cannot be transferred by the Will. It is therefore important that people who have separated give consideration to whether they want to change their Wills.
A Divorce Order automatically invalidates an existing Will, unless it specifies that it is to continue after a Divorce. Getting married invalidates an existing Will, unless it is stated to be in contemplation of marriage.
It is important to review your Will regularly, at least every few years, and particularly if there is a significant change in circumstances such as the death of a beneficiary or a relationship breakdown.
Wills prepared by Solicitors are cheap insurance compared to the complications which can arise with a ‘do it yourself’ Will.