Making a Will

Making a Will is often thought of as a simple process.

The reality is, making a Will can be much more complex when you consider every aspect of your life (relationships, children / step-children, siblings, business, superannuation), and at the same time ensuring Australian Law is adhered to.

Who can make a Will? 

Under Victorian Law, any person over the age of 18 years and who has the mental capacity to understand what is being done, can make a Will.

Why make a Will?

Failure to prepare a valid Will means you have no formal arrangements in place to pass over your property and assets, otherwise known as ‘intestacy’. Intestacy laws set out the way in which your estate will be distributed when there’s no Will.

When you pass away without a formal Will, the distribution of your assets may therefore not be in accordance of your original wishes. Instead, they may be left to an administrator appointed by the Probate Court to manage the process. In making a valid Will, you are exercising your legal right to direct the manner in which your assets should be distributed after your death.

What makes a Will valid?

For a Will to be valid, The Wills Act 1997 sets out the following requirements –

• It must be in writing;
• It must be signed by the person whose Will it is (also known as a Will-Maker)* 
• At the time of signing the document, the Will-Maker must intend to make a Will by signing the Will document;
• The signing of the Will must be witnessed by two or more witnesses. These witnesses must attest they were present at the time the Will-Maker signed the Will document.

* (but can be signed by another person in the their presence and by their direction, if there is a physical impediment to the Will-Maker signing the document);

What should a Will contain?

A Will covers a range of complex legal issues. 

Firstly, your Will should appoint an Executor or Executors to deal with your entire estate. Then, the information detailed in your Will is dependent on your lifestyle and should be changed when an aspect of your life has changed. For instance, entering a new relationship or starting a new business.

Below are some aspects that you may consider in your Will:

• Family Dynamics – take into account whether you are single, in a relationship, multiple marriages and relationships and step-children.

• Guardianship – if you have children under the age of 18 in your care, you should appoint a Guardian for those children.

• Superannuation and Life Insurances – navigate any issues relating to gifting these aspects in your Will.

• Physical Assets – nominate physical assets that you may like to gift people  

• Digital Assets – think about who to give power to control your digital assets. This includes email accounts, online banking passwords, social media accounts, access to mobile phones etc…

• Businesses – Understand which business assets can be legitimately passed on and which may not, according to its structure. For example, assets owned by a Company or Family Trust are not legally owned by you and may not pass according to the directions of your Will.

Finally, any jointly owned property will pass automatically to the other joint owner(s) upon your death and will not pass through your estate under your Will. This issue becomes quite complex if you are involved in a second marriage or de facto relationship with children from your prior marriage or relationship. 

When should I make a Will?

Under Victorian Legislation (Wills Act 1997), if you get married, or if you are married and get divorced, any Will you made prior to your marriage or divorce (as the case maybe) is automatically revoked. If any of the following life events occur, you should consider making a Will or updating your existing Will – 

• Marriage or re-marriage
• Divorce
• The death of a close family member or significant change in their personal circumstances whereby that family member now has special needs
• A change in your financial situation or that of your potential beneficiaries such as bankruptcy or a sudden increase in wealth
• Changes to the Laws and Regulations relating to Pensions
• A change in the circumstances of an Executor or Guardian named in your Will

Can a Will be challenged?

In a word, yes.

A Will may be challenged in two ways.

1. The validity of the Will itself may be challenged. Usually, this type of challenge involves an allegation that the Will-Maker did not have the required capacity or intent to make their Will.
2. A disappointed beneficiary may make a claim for provision out of the deceased’s estate by way of a Testator’s Family Maintenance Claim. In this case, the validity of the Will itself is not challenged, but the claimant seeks a Court order that they should have been let an inheritance, or a larger inheritance under the Will by reason of their relationship with the deceased.

For more information about challenges to Wills, click here

Mackinnon Jacobs Lawyers, based in Boronia, Victoria, can provide guidance and advice in relation to all issues regarding your Will.

Please contact us here for more information.