Frequently Asked
Questions

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 dependents (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.

What should a Will include?

A Will should name at least one executor. An executor is a responsible person who will see that your wishes, as expressed in your Will, are carried out and who will administer your estate until it is properly distributed.

We can assist the executor in their duties, which may include paying debts, selling property and distributing the estate in terms of the Will. If any claims against the estate are made during this process, we can advise the executor.

An executor can be named as a beneficiary in your Will and you can direct that your executor should get paid for the work they do. You should give some thought to this even if your executor is a friend or relative, as administering an estate can involve a lot of work. A person named as an executor can also witness your Will but this might effect any gift you leave that person. This does not apply to payment for services as an executor.

Your will should provide for payment of your liabilities such as mortgages, overdrafts and debts.

It should make adequate provision for your dependents (partners, children, adult children not able to look after themselves and, sometimes parents). If it doesn’t, they may be able to make a claim on your estate.

A gift to one of your children who dies before you will pass automatically to their child (that is, your grandchild) unless your will says otherwise.

Your Will should say who you want to inherit your personal possessions as well as your general assets. Some people make a provision in their Will asking the executor to observe any list they leave about who is to receive particular less valuable items. If this is handled properly, you may be able to update it without changing your Will.

Any property you own as joint tenants automatically becomes the property of the surviving partner with whom you own it, unless there is an agreement otherwise (subject to rules in the Property (Relationships) Act). Your Will does not apply to any property held that way.

You may own property with others in equal or unequal shares. On your death, your share becomes part of the assets in your estate and is dealt with as your Will directs.

Your Will can name preferred guardians of your children.

You can set out any specific funeral arrangements that you want, though those organising your funeral are not legally bound to follow those instructions.

Your Will can also include a bequest or a gift to charity. This might be a specific gift, such as an amount of money or shares or a residue gift. That is, part of anything that is left of the estate after specific gifts.

You can give directions as to how a business you own should be dealt with when you die.

Who should benefit from my Will?

Beneficiaries are the people who inherit your property. That is, they benefit from gifts in your Will. You can name anyone and any organisation you like as beneficiaries, but remember there are circumstances in which people can challenge your Will. For instance, it is usual to provide for your spouse or partner, children, possibly grandchildren and, in some cases, parents. If you don’t, they may be able to bring a claim under the Family Protection Act.

Also, you may have promised to leave a certain item or some money to someone who has helped you. If you don’t make provision for that in your Will, they can make a claim under the Law Reform (Testamentary Promises) Act.

Usually you cannot leave any gift to a person who witnesses your Will, or any spouse, civil union partner or de facto partner of a witness. However, if you do leave such a gift, it may be declared valid if those who would otherwise benefit agree or if the High Court is satisfied that the will-maker knew and approved of the gift and made it voluntarily.

What if I die without a Will?

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.

Does making a Will restrict what I can do with my property during my lifetime?

A Will does not prevent you from selling or giving away anything or dealing with your property in any way you choose during your lifetime. Your Will takes effect from the date of your death not from when you sign it.

However, often two people make mutual Wills agreeing on how to dispose of certain property. They can agree to keep the same arrangement in any future Will, by way of a separate contract. Under the Wills Act 2007, if the first person to die keeps the promise but the second person to die does not, the intended beneficiary can make a claim against the second persons estate.

Can I cancel or change my Will?

You can revoke (cancel) your Will at any time (while you are still of sound mind) by:

• Making a new Will;
• Declaring in writing (similar to making a Will) that you revoke your existing Will;
• Destroying your Will with the intention of revoking it;
• Otherwise showing an intention to revoke it (but that can cause problems if there are photocopies available and people don’t know you have revoked it).

When you make a new Will, you should start by inserting a clause revoking any previous Will. It is a good idea to tell anyone holding a previous Will that it is no longer current.

You should also consider advising any previous executors and trustees if they have been replaced (though that is not legally necessary).

In some circumstances, you can change part of your Will without making a new one.

However, you should consult a professional if you want to do this, to discuss the consequences on other provisions in your Will.

How often should I review my Will?

You should review your Will regularly. You should also review it whenever your circumstances change, if you marry or enter into a civil union or de facto relationship or when such a relationship ends, if any trustee or significant beneficiary named in the Will dies or if your assets or liabilities change significantly.

You should also review your Will if the law changes. Some major changes in recent years have affected Wills so if you have not already done so, check to see if your Will is still valid and if it is likely to be challenged under any of the new laws. If your Will has been made since 1 November 2007, it is probably valid under the new laws.

Where should I keep my Will?

We can store your Will free of charge. You should tell your executors, a family member or a friend where it is held. When you die, your lawyer or trustee will check to ensure that the Will they hold is the last Will you made.

Most people also keep a copy at home (with a note as to where the original is held).

What if my Will is lost?

If the original of a will cannot be found, the court may approve a copy. It is necessary to prove that the will was signed, not revoked and that the original has been accidentally lost or destroyed.

If no will can be found, or there is no evidence the will was signed and not revoked, the person will be deemed to have died intestate and their estate will be handled according to the provisions of the Administration Act.

What are the formal requirements for a valid Will?

To be legally valid, a Will must be:

• In writing;
• Signed at the end by you, the testator;
• Witnessed by two other people who are with the testator (the two witnesses must both be present when you sign, and you must also witness each of their signatures; it is usual, though not strictly essential, for the two witnesses to sign in each other’s presence), and
• Intended by you to take effect as a Will.

The two witnesses should preferably be at least 20 years old.

Witnesses cannot be beneficiaries under the will, and nor can the spouse or civil union or de facto partner of a witness. If they are beneficiaries, this does not make the will invalid, but they are not entitled to receive anything under the will.