Wills & Estates

What is a Will?

A Will is a written legal document that states your wishes as to what happens to your property (your ‘estate’) after your death. It gives instructions for the person or organisation distributing your property (your ‘executor’) about how this is to happen.

Who can make a Will?

Anyone aged 18 years and over can make a Will, so long as they have the mental capacity to understand what they are doing. People under 18 can only make a valid Will if they are married or have a court order to authorise making a Will.

What information is contained in a Will

A Will includes details of how a person’s assets, such as houses, cars, money, shares, cash will be handled upon the person’s death. It appoints an executor and names a beneficiary or beneficiaries, who will be entitled to a share of the will-maker’s assets.

Wills should also specify the rights and powers of trustees, as relevant. A Will can also contain provisions regarding how the deceased person’s remains are to be dealt with and who will act as a guardian for any children of the deceased.

Legally valid Wills

For a Will to be valid it must be in writing, intended to be your Will and signed by you on each page in front of at least two witnesses. The Will must also be dated at the time of signing.

If a person making a Will does not freely and voluntarily make the Will or have testamentary capacity with the intention to make a Will, it may be invalid.

Appointing an Executor

The role of an executor is a responsible one and while it can be tempting to choose your best friend or eldest child simply because it seems the right thing to do, it is important to consider whether the person you are thinking of naming as executor has the capacity to carry out the role.

The question of who to appoint as executor is an important decision and something we can guide you on when preparing your Will.

Understanding Probate

Probate is a grant made by a Court that proves the Will of a deceased person and authorises the executor to deal with the estate and administer it in accordance with the provisions of the Will. The executor may need to pay estate debts, distribute assets, sell and transfer property and arrange estate tax returns.

Depending on the circumstances, an executor may not need to obtain a grant of probate, particularly for small or simple estates. Probate however is often a prerequisite before financial institutions or entities will release larger valued assets, and in some cases will be necessary to transfer real estate.

A grant of probate may also be recommended to help protect an executor from being personally liable in carrying out his or her duties or where there could be potential disputes over the estate. Your lawyer can advise when probate is necessary or recommended before administering an estate.

Challenging the validity of a Will

A Will may be challenged either because of claims that it is not valid, or because a dependant has not been sufficiently provided for. Some grounds for challenging a Will include:

• Undue influence– where a party (usually a beneficiary) used an unreasonable amount of influence over the deceased, which resulted in them preparing their Will in a certain way to unjustly benefit that party.
• Allegations of fraud and/or allegations that the Will (or part of it) has been forged or claims that the Will is fake.
• Claims that the deceased lacked the necessary testamentary capacity (mental capacity), to make the Will at the time it was executed.

Other types of estate litigation

Other issues that may lead to the contest of a Will include:

• whether the deceased’s Will contains obvious errors or mistakes;
• disputes between beneficiaries as to how the estate should be administered;
• claims by a beneficiary or beneficiaries that an executor should be removed and replaced.

Family Provision Claims

Different jurisdictions in Australia have set criteria as to who may be eligible to make a claim if they feel that they have been inadequately provided for in a Will or have been excluded altogether. Different time limits for claims apply, depending on where you live and where the deceased resided and made their Will.

If you are thinking of making a claim against a Will or you are the executor of an estate where a claim has been made, our lawyers can advise you on how best to proceed with a view to resolving the dispute without unnecessary costs and stress for all parties. Many such claims are settled without the need to go to court.

We can all take steps to simplify the management of our financial and legal affairs to help protect our hard-earned assets and provide clarity for our family when we die.

We have a wealth of experience in estate planning and estate litigation law and can provide advice and guidance tailored to your individual circumstances.

If you need assistance, contact one of our lawyers at [email protected] or call 03 9338 8511 for expert legal advice.