Making A Will

What is a Will and why do I need one?

A Will is a legal document that sets out who you want to receive your assets when you die. Making a Will is the only way you can ensure your assets will be distributed according to your wishes when you die. Studies show that at least 45% of Australians do not have a valid Will. If you die without a Will your estate will be distributed according to a pre-determined formula, and if your only living relatives are more distant than cousins your estate will pass to the government.

How do I ensure my Will is valid?

For a Will to be valid it needs to comply with certain criteria:

• Unless married, you must be over 18 years old (The Supreme Court can approve a Will for people under 18 only in exceptional circumstances)
• It must be in writing – it can be handwritten, typed or printed
• It must be signed by the person making the Will and witnessed by two or more witnesses (beneficiaries should not be a witness as it may cancel out their entitlement)

Professional Will-makers such as KP Carmody & Co will ensure areas covering testamentary capacity are addressed in the process of drafting a Will and will provide impartial witnesses. We are also able to provide advice in relation to estate planning and who may contest your Will.

Can I prepare my own Will or use a do-it-yourself Will kit?

Preparing your own Will is not advisable.

A Will must conform to strict legal requirements otherwise the Courts may decide it is not valid. If this is the case your assets will be distributed according to a predetermined formula and not as you intended.

What happens if I die without a Will? If you die without a Will, you die intestate. This means, as you didn’t have a Will, no-one knows who you wanted as your beneficiaries and who you wanted as your executor. Your assets will then be distributed according to a pre-determined formula with certain family members receiving a defined percentage of your assets despite what you may have wished.

Dying intestate can result in your surviving spouse, family and friends suffering unnecessary financial hardship and emotional stress. If you are in a de-facto or same sex relationship, it is necessary to supply sworn evidence that the relationship existed. If you die intestate and have no surviving relatives closer than cousins, the State Government will receive your estate.

Where should I keep my Will?

Most people realise the importance of making a Will. However, a Will can only be used if it can be found when required. It is important to store your original Will in a safe place. It’s a good idea to tell someone close to you where your Will is stored.

When you make a Will with KP Carmody & Co, your original Will is held free of charge in our fireproof safe. You will receive a copy for your own records. This ensures your Will will not be misplaced and is able to be easily located when required.

How often should my Will be revised or updated?

Your Will expresses your wishes at a particular point in time. It is advisable to regularly review your Will as your circumstances change so that it accurately reflects your current wishes.

If I get married or divorced does that affect my Will?

Yes, if you marry after you have made a Will, the Will is generally revoked unless it was made in anticipation of marriage. Marriage will not affect a gift to the person who is your spouse at your date of death. If you divorce after you make your Will, it only revokes or cancels any gift to a former spouse.

Who can contest my Will?

While you are entitled to leave your assets to anyone you wish, in some circumstances, persons who believe they have not been sufficiently provided for maybe entitled to contest your Will.

People who can contest your Will under the Succession Act 2006 are not restricted to your spouse and children. Claimants can include a de-facto partner, any other dependants or a former spouse. The person needs to convince the Court that you failed to make adequate provisions for their maintenance, education or advancement in life.

Digital Records

Legal Personal Representatives (LPR) may need to search digital records to administer or manage an estate.

Provisions may be included in Wills, powers of attorney and enduring guardian documents, authorising the LPR to deal with digital records.

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• Legal Matters