A Guide to Making a Will

What is a Will and why do I need one?

A Will is a legal document that sets out who you want to receive your assets when you die. Making a Will is the only way you can ensure your assets will be distributed according to your wishes when you die. Studies show that at least 45% of Australians do not have a valid Will. If you die without a Will your estate will be distributed according to a pre-determined formula, and if your only living relatives are more distant than cousins your estate will pass to the government.


How do I ensure my Will is valid?

For a Will to be valid it needs to comply with certain criteria:

  • Unless married, you must be over 18 years old (The Supreme Court can approve a Will for people under 18 only in exceptional circumstances)
  • It must be in writing – it can be handwritten, typed or printed
  • It must be signed by the person making the Will and witnessed by two or more witnesses (beneficiaries should not be a witness as it may cancel out their entitlement)
  • You must have a “testamentary capacity”. This means:
  • You know the legal effect of a Will
  • You must be aware of the extent of your assets
  • You must be aware of the people who would normally be expected to benefit from your estate
  • You must not be prevented by reason of mental illness or mental disease from reaching rational decisions as to who is to benefit from your Will.

    Professional Will-makers such as KP Carmody & Co will ensure areas covering testamentary capacity are addressed in the process of drafting a Will and will provide impartial witnesses. We are also able to provide advice in relation to estate planning and who may contest your Will.


    Can I prepare my own Will or use a do-it-yourself Will kit?

    Preparing your own Will is not advisable. A Will must conform to strict legal requirements otherwise the Courts may decide it is not valid. If this is the case your assets will be distributed according to a predetermined formula and not as you intended. Anyone who is not legally qualified risks making a mistake, creating uncertainty or losing opportunities for good estate planning if they make a Will for themselves.


    The precise wording of a Will is a specialised and important legal task. The ordinary meaning of words is not necessarily the same as their legal meaning. Ambiguous wording is extremely common in home-made Wills and may result in substantial cost and delay in having the Supreme Court resolve the ambiguity.


    A Will is an important legal document. It is therefore advisable to have your Will professionally drafted and ensure your wishes are properly recorded and carried out.


    What happens if I die without a Will?

    If you die without a Will, you die intestate. This means, as you didn’t have a Will, no-one knows who you wanted as your beneficiaries and who you wanted as your executor. Your assets will then be distributed according to a pre-determined formula with certain family members receiving a defined percentage of your assets despite what you may have wished.


    Dying intestate can result in your surviving spouse, family and friends suffering unnecessary financial hardship and emotional stress. If you are in a de-facto or same sex relationship, it is necessary to supply sworn evidence that the relationship existed. If you die intestate and have no surviving relatives closer than cousins, the State Government will receive your estate.


    What if I’m living in a defacto or same sex relationship and I die without a Will?

    If your partner can satisfy the legal requirements proving the relationship, they may be entitled to share in your estate on your death. The necessity of proving the relationship can result in additional expense and distress at a time when they are grieving. It is much easier to draft a Will naming your partner as a beneficiary.


    Where should I keep my Will?

    Most people realise the importance of making a Will. However, a Will can only be used if it can be found when required. It is important to store your original Will in a safe place. It’s a good idea to tell someone close to you where your Will is stored.


    There have been many instances where family and friends were aware that a Will existed but they were unable to locate it when it was required.


    When you make a Will with KP Carmody & Co, your original Will is held free of charge in our fireproof safe. You will receive a copy for your own records. This ensures your Will will not be misplaced and is able to be easily located when required.


    How often should my Will be revised or updated?

    Your Will expresses your wishes at a particular point in time. It is advisable to regularly review your Will as your circumstances change so that it accurately reflects your current wishes. Situations where you may want to update your Will include:


  • Marriage
  • Separation or divorce
  • Starting a de-facto relationship
  • Having children or grandchildren
  • Your children having remarried or divorced and have extended families
  • The executor named in your Will, having become ill, is unable to handle the responsibility, or has died
  • A beneficiary named in the Will having died. When writing your Will it is wise to name substitute beneficiaries
  • Death of spouse
  • The value of legacies diminishing over time. While you may have left a sum of money that seemed significant when you last made your Will, what is it worth in “today’s dollars”?
  • Retirement often results in people restructuring their affairs. This is an ideal time to be proactive in your estate planning and possibly look at setting up tax effective arrangements through your Will
  • When you buy or sell assets. There are many examples of people bequeathing assets which they sold before they died. This resulted in some beneficiaries receiving nothing, while others received significantly more than was intended in the original Will.

    We recommend that you review your Will every five years or whenever you have a significant change to your circumstances such as those outlined above.


    If I get married or divorced does that affect my Will?

    Yes, if you marry after you have made a Will, the Will is generally revoked unless it was made in anticipation of marriage. Marriage will not affect a gift to the person who is your spouse at your date of death. If you divorce after you make your Will, it only revokes or cancels any gift to a former spouse. It also cancels your spouse’s appointment as executor, trustee or guardian in the Will, but will not cancel an appointment of a former spouse as trustee of property left on trust for beneficiaries that include children of both you and the former spouse. However, this won’t apply if the Court is satisfied that the Will-maker did not intend by divorce to revoke the gift or appointment. Those issues require specific legal advice.


    Who can contest my Will?

    While you are entitled to leave your assets to anyone you wish, in some circumstances, friends or relatives who believe they have not been sufficiently provided for are entitled to contest your Will.


    People who can contest your Will under the Succession Act 2006 are not restricted to your spouse and children. Claimants can include a de-facto partner, any other dependents or a former spouse. The person needs to convince the Court that you failed to make adequate provisions for their maintenance, education or advancement in life.


    An increasing number of people now have complicated family structures such as blended families and second marriages. This may increase the likelihood of your Will being contested.


    As a professional Will-maker, KP Carmody & Co is able to advise on your concerns regarding possible challenges to your Will.


    Digital Records

    Legal Personal Representatives (LPR) may need to search digital records to administer or manage an estate.


    Provisions may be included in Wills, powers of attorney and enduring guardian documents, authorising the LPR to deal with digital records. This makes the wishes of the client known and should assist in dealings with service providers.


    Digital records may exist in digital or other electronic readable form. The record may not be an “asset” in the conventional sense – it may not be owned by the user, even though it may have been created by or relate to the user. Digital records may have financial or sentimental value to the user. Often they will be useful to a person dealing with the user’s managed or deceased estate.


    A critical issue when taking instructions for a Will is whether the person best able to act as the client’s executor is the person best placed to manage the client’s digital records. Whilst the notion of a ‘digital executor’ is very recent, the concept of a person being appointed to bear responsibility for only part of a deceased’s estate has a long history.


    Clients can assist their LPR by keeping a list of digital records. If access to digital records is not available, the LPR may have difficulty ascertaining the full extent of the assets and liabilities, resulting in difficulty fulfilling their duties to call in the assets of the deceased, preserve their value and pay the debts of the deceased.

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