FAQs - Wills

  • A Will is a way of recording how you intend to distribute your estate when you die. It may cover many different subjects, such as who you wish to appoint as Executor, who you wish to look after your children and your funeral wishes.

    A Will must contain certain clauses, must be written down and must be witnessed correctly. There are many different strategies that ensure that your wishes will be realised, and choosing the best one will be dependent on your circumstances.

  • Yes, you can create a Will yourself, but doing so presents many risks. Estate Planning is a specialised area of the law and if a legal professional is not the person who writes your Will, then your wishes may be misinterpreted. There are often many ways to interpret even the simplest of wishes, and families have spent much time and money litigating such matters.

    Another risk that arises from creating your own Will is simply a lack of knowledge of the law. There are many different aspects of estate planning that most people do not know. For example, some assets you own or control, may not form part of your estate, so they won’t be dealt with by your Will.

    It is especially important to see a professional to have your Will made if you have complex business arrangements, significant superannuation or family trusts. Without the proper understanding of the limitations and capabilities of a Will, your intentions may not be fully realised.

    An inexperienced Will-maker may lead to:

    1. A loved one being accidentally disinherited,

    2. A person bringing an application to the Court to be provided for from your estate, or

    3. Higher rates of tax being paid.

    In the end, having a legal professional make your will is usually going to save time, money and potential heartache for your loved ones.

  • A Will can be attacked in many ways. Generally, the most common claims are against the validity of the Will itself or are brought by someone (usually a spouse, child or dependant) that feels that they are eligible to receive more from your estate. The latter scenario can be especially costly, as someone who brings such a claim may also be entitled to have their legal costs paid from the estate, even if they are unsuccessful.

    A valid and clear Will is the first step in preventing attack. There are several important steps to creating a Will to ensure that it complies with all legal requirements. The wording of the Will is also crucial, to ensure that it does not become open to misinterpretations.

    There are many strategies that may be advisable, and the best one for you will depend on your circumstances.

  • Superannuation is not technically a part of your Estate assets, as it is held in trust by the trustee of your superannuation fund. The default position is that the trustee of your superannuation fund will decide how your super is paid in the event of your death.

    If you would like to direct your super to a beneficiary when you die, you will need to create a Binding Death Benefit Nomination which will be sent to the trustee of your super fund. This binds the trustee to follow your instructions, however, you can only nominate certain types of beneficiaries (a ‘tax dependent’) for your super.

    If you want to provide your superannuation to a different type of beneficiary (someone other than a ‘tax dependent’) you will need to nominate for your superannuation to be paid to the Legal Personal representative of your estate. Then, in your Will, you can nominate how your super is to be paid.

  • When a person dies without a Will, they are said to have died “intestate”. In Queensland, what happens to your assets will depend on your familial circumstances. For example, if you are married with children, your spouse will receive $150,000, all household contents and one third of what remains. The remaining two thirds will be distributed to the deceased’s children.

    This can obviously create problems for couples who may have the following wishes:

    1. On the first death, to distribute everything in their estate to their spouse; and then

    2. On the second death, to distribute all assets to the couple’s children.

    It is common for couples to have wishes such as these, and it is a sad fact that many couples do not have their wishes fulfilled due the intestacy laws.

  • Yes, you may attach what is called a “Codicil” to alter certain provisions of your Will. This document has the same signing requirements as the Will itself. The codicil will set out what provisions are deleted, amended or added, depending on what is required.

    However, in some cases, particularly where the alterations are numerous and significant, a Codicil is not appropriate. Sometimes, it is best to write a completely new Will, which replaces the original Will.

  • There are many reasons why an update to a Will is advisable. Solicitors generally recommend reviewing your Will every three years to confirm that it still effectively captures your wishes.

    Certain life events may give rise to a change of will as well. These may include:

    1. A marriage

    2. A birth

    3. A separation

    4. The death of an Executor/trustee/beneficiary

    The occurrence of such an event does not require a new or altered Will. However, it is important to be aware of the risks that are involved.

  • A Will-maker will usually appoint a person to be an “Executor”. Generally, the Executor will be someone close to the Will-maker, and someone they can trust.

    The Executor is responsible for the administration of the deceased’s estate. This can mean many different things, depending on the directions under the Will, however in most cases will require:

    1. Securing the assets of the estate

    2. Paying all debts

    3. Establishing trusts created by the Will

    4. Applying for Grant of Probate

    A person who acts as Executor has certain obligations, and for complex estates, being appointed as an Executor requires careful consideration of all assets, liabilities and risks.

  • Unfortunately, this is a question that only you can answer. However, it is very important that your chosen Executor is someone that you can trust. An Executor must be over the age of 18 years of age. You can appoint several people to make decisions regarding your estate jointly. Many Will-makers will appoint their spouse, child, parent or sibling to be the Executor, although this does not always need to be the case!

    In any case, it may help to discuss this matter with a solicitor that can inform you of the benefits and the risks for any given decision.

  • A person who is writing their Will must have capacity. This means that the person must have a certain level of mental competency in order for their wishes be effective. In Australia, we have a specific test that must be fulfilled if there is a challenge to the Will on the basis that the Will-maker did not have capacity. The test is set out as follows:

    1. The Will-maker must understand the nature of the act and its effects

    2. The Will-maker must be aware of the extent of the property of which s/he is disposing

    3. The Will-maker must appreciate the claims to which s/he ought to give effect.

    This means that simply proving that the Will-maker had dementia may not be enough! It requires an often difficult analysis of all the circumstances of each case. On the other hand, a medical certificate may not be enough to prove capacity either.