A Will is a simple legal document by which a person the Will maker makes provisions for an Executor to be appointed to administer the Will maker's estate after their death, to discharge liabilities, and distribute the property as directed to beneficiaries as specified in the Will.
The basic formal requirements for a Will to be valid are that the Will must Be:
- in writing;
- signed with the approval and knowledge of a free and capable Will maker; and
- the Will maker's signature is done or acknowledged in the presence of two independent witnesses.
Another requirement that the Will maker should revoke any previous Wills made by the Will maker.
THINGS TO CONSIDER WHEN MAKING A WILL
Executor
An Executor has a special duty called a "fiduciary duty" to your Estate. This means that they must operate the Estate in the best interest of the beneficiaries and not themselves. Therefore, you Executors must be someone you can trust with money and not spend or borrow it themselves. They must not have been bankrupt. They must be capable of looking after a trust until any children who are beneficiaries under the Will reach an age you determine that they can inherit their share. During the period of the Trust, they are required to use their discretion to payout for the maintenance, education, and advancement in life of any children who are beneficiaries of the Estate. Therefore you need to select your Executors carefully.
Marriage
The general rule is that Marriage revokes all previous Wills, the exceptions are:
- A Will made during the marriage; and
- A will made in contemplation of marriage.
Divorce
Divorce has the effect of revoking any gifts to the former spouse, as well as any appointment of the former spouse as an Executor or Trustee of the Will makers Will.
However, this only applies when the Divorce has been finalised. Therefore, if a person is contemplating separation or is separated from their spouse, then that person should consider making a new Will to "cut-out" the separated spouse.
Guardian of Minor Children
A surviving parent has a right to appoint a Guardian of their minor children.
A Guardian has the day to day as well as long term decision-making powers for the care, welfare, and maintenance of your minor children. While there are advantages and disadvantages in appointing a testamentary guardian, the advantages outweigh the disadvantages.
The Will maker should give careful consideration as to who they appoint as the testamentary guardian as a guardianship can only be changed by the Court.
Age of inheritance
A child or other persons cannot inherit any property under a Will if they are under 18 years of age (which is the age referred to as the "age of majority").
A child under the age of 18 years of age inheritance is held on trust for the child until they turn 18 or an age that is nominated. Some may say that children although, obtaining the age of majority and being allowed to vote, enlist in the army services, etc, they do not yet have "their head screwed on" financially. When they are 21 years of age they have more sense but some may argue that they would still spend their inheritance anyway. Some argue that the correct age to inherit should be 25 years of age as because as adults they will probably be settled down by then.
Please do not feel bound by these ages. You may nominate any age 18 years or over for your children to inherit.
Burial or Cremation wishes
A Will maker may specify in their Will how they would like their body treated after they have died, either, burial or cremation. Where they would like to be buried or have their ashes scattered or kept.
This can be provided in your Will. However, it is important to know that this is a wish and not a direction. If you wish to make a burial/cremation wish in your Will it is a good idea to tell your Executors of your wish prior to your death.
Excluded Persons
Despite the Law recoginising that a Will maker, has the freedom to leave their Estate to any person that they wish. Chapter 3 of the Succession Act 2006 NSW hobbles the Will maker's freedom to leave their assets as they wish.
A Will maker has a duty to provide for relatives and people who are dependent upon the Will maker. Some relatives and other people may be able to make a claim against the Will maker's estate under certain circumstances.
If you wish to specifically exclude certain persons from your Will please discuss this with us.
Specific Gifts
You may wish to consider giving a specific gift to a beneficiary. Please be a little careful. If you say in your Will "I give to my brother my Red 1964 Jaguar", because he always admired and wanted the car, and you sell it before the Will becomes effective, the gift disappears. Therefore your brother gets nothing.
Therefore you may consider stating in your Will 'I give to my brother my car", he will then get whatever car you have at the time of your death.
Gifts to a Charity
You may wish to give a sum of money to a registered charity. If you have such a charity in mind, please inform the person drafting your Will so that it can be included it in your Will.
Our team has put together a handy Will and Estate planning checklist which can help you prepare for your appointment, and is a great place to start if you are drafting or updating your Will.
If you have any questions, or to book an appointment, we can be contacted in Bathurst, Oberon, or Lithgow on 1800 650 656. We're here to help!
Peter McManus | Solicitor