Wills - How to Get One & Changes to the Law

Notes from a Practising Solicitor...

If you access the GrownUps site the chances are that you have a will. But have you reviewed it recently? There have been a number of changes to legislation in recent years that impact on the law relating to wills. If however you do not have a current will then this information really is for you.

Why do I need a Will?

If you die without a will (dying “Intestate”) you are leaving it to the government under the Administration Act to specify how your assets will be distributed. This may be in accordance with your wishes but why take the chance? In addition someone, often a family member, will need to apply to the Court to be appointed administrator. Only one thing is certain - it will take longer to wind up your estate and the expenses may be significantly higher. The uncertainties created by the absence of a will could well create an unwelcome burden for family members; particularly if there are issues arising from more than one marriage or de facto relationship.

Who should I see to make a Will?

Most people use lawyers or Trust Companies to make their will and for good reason. You may be tempted to write your own will or to use one of the do-it-yourself kits, but put this thought from your mind. There are very strict rules regarding the form, method of execution and witnessing of wills. Just as important is the expert advice often required to ensure that you make fair provisions for your family and dependents in a manner that is unlikely to be challenged. “Free wills” are less common than in the past, in part due to the complex provisions often required for the reasons touched on above. You should enquire about the likely cost but keep in mind that a more relevant factor may be the costs involved in administering your estate.

What information should I provide?

It will be helpful, and reduce the time involved, if you bring with you a list of the people and charities you wish to benefit. Your legal advisor may be able to assist with the appointment of suitable executors; particularly in circumstances where your spouse/partner does not survive. Information regarding existing trusts or special categories of property or business assets will also be relevant.

Are there other matters that I should discuss when giving will instructions?

This is the time to consider such things as:

• Enduring Powers of Attorney. Having suitable people appointed to look after your affairs in the event of incapacity can be just as important as having a current will. Recent changes to the law have been designed to provide more protection to the persons creating these documents.

• Relationship Property Agreements for those persons who are in new relationships – whether marriage or de facto.

• Estate planning issues. These can cover a wide field but two of the more common steps that can be taken are:

1. The setting up of a Funeral Trust (a government approved interest bearing deposit of up to $10,000 that is not counted as an asset for rest home subsidy calculations)

2. A provision in your will that your spouse/partner is granted only a life interest in the family home or other major asset leaving the asset in question to be held in trust for the other beneficiaries. The fact that the asset never becomes an asset of your survivor can have important legal implications. Your legal advisor can explain the complexities of these and other relevant issues.

Changes to the law relating to wills

The Wills Act 2007 has just come into force. You would be forgiven for thinking that the legislation is well overdue given that much of the previous law was contained in an act created in 1837! The new act does not make substantial changes to the existing law but the general public will be pleased to learn that one of the main intentions is to restate the law in plain modern language. Some of the other features:

• Allowances are now made for Civil Unions

• The term “testator” is replaced by “will maker”

• A discretion is given to the Court to ensure that as far as possible, effect is given to the intentions of the will maker. Previously a body of very technical and strict interpretations of law had arisen over the years, which often resulted in decisions far removed from the wishes of the deceased.

One thing that has not changed however is the need for a properly drawn will that gives effect to your wishes in a manner that gives the least chance of its provisions being challenged.

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