Wills

Common Questions About Wills

WHAT IS A WILL?

 Your will contains your instructions about what you want done with your property when you die and how you want your dependants (spouse, civil union partner, de facto partner, children, etc) to be looked after. As far as you and your family are concerned, it could be the most important paper you ever sign. A will can relieve financial and emotional strain on your family after your death and help minimise the likelihood of dispute about your estate. Remember, it is not just money you have to think of, but all your possessions and debts.

WHO CAN MAKE A WILL?

Anyone of sound mind who is at least 18 years old can make a will. A person under 18 may make a will if they are (or have been) married or in a civil union or de facto relationship. Others under the age of 18 can make a will if given approval by the Family Court or if they are in the military or are a seagoing person.

WHEN SHOULD I MAKE A WILL?

Now. Even if you don’t own major assets, you can quite quickly build up possessions that can have monetary or sentimental value to you and to others. You may have some money in a savings account, a car, furniture and household items, a good stereo or home entertainment system, a life insurance policy, some jewellery and so on. A will allows you to decide what will go to whom, even if your possessions have sentimental rather than financial value

In particular, you should make a will when you marry or enter into a civil union or de facto relationship, or when you have children. If you marry or enter a civil union, any will made before that is automatically revoked (cancelled) unless it was made in contemplation of that particular marriage or civil union (which is best explicitly stated in the will itself). This applies even if you marry or enter into a civil union with someone who is a beneficiary under your existing will. And you should revise your will if a relationship ends. If you separate from your spouse or civil union partner with the intention of ending the marriage or civil union, provisions in your will relating to your spouse or partner will remain valid until formal separation orders are made by the court or the marriage or civil union is legally dissolved (that is, you are “divorced”). A separation agreement or relationship property agreement does not revoke your will. So you will have to change your will if you want to exclude your spouse or partner before a separation or dissolution order is made.

When you separate legally or “divorce”, any provisions made for your ex-spouse or civil union partner will be void unless you, as the will-maker, have made it clear in your will that you want them to remain valid.

The situation is different for de facto partners. Entering a de facto relationship does not revoke an earlier will. This means an existing will benefiting someone other than your current partner remains valid and may disadvantage your current partner. The ending of a de facto relationship does not revoke provisions in your will relating to your former partner. So, if you don’t want that person to administer your estate or to inherit, you must change your will.

WHAT IF I DIE WITHOUT A WILL? (KNOWN AS DYING “INTESTATE”)

If you die intestate, the Administration Act specifies how your property will be distributed – usually to a surviving spouse/ partner and immediate family, or to near living relatives, in set proportions. This may not be what you would have wished or what your family wants, and it could involve them and your estate in the cost and effort of making a claim under one or more of the above Acts. If there are no relatives in the categories listed in the Administration Act, then your estate goes to the State. Your lawyer or a family member can still administer your estate if you have not made a will, but only according to the Administration Act.

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