What you should know about wills

Recent studies have shown that around 45% of Australians do not have a valid will. 

This is rather concerning as most people have some assets. However, it is possible that people forget about their assets, or have assets that may not be payable until their death, such as a death benefit from life insurance. If a client passes away without making a will, the law takes the view that they have died intestate. Each state and territory has their own rules of intestacy but generally they provide that an intestate estate be distributed initially between a spouse or children. 

While there is no legal obligation to make a will, having a will offers many benefits, both financial and personal.

Some of the advantages to a client of having a will are:

  • helping to ensure that their hard-earned assets go to the people they want to benefit

  • helping to ensure that beneficiaries take their inheritance when intended

  • excluding people who may otherwise benefit on an intestacy 

  • allowing choice of the executor and trustee 

  • on average, lower costs for the estate administration for those with a will than an intestacy.

Validity of wills

Generally, a person must be 18 years old to make a will. There are some exceptions to the general rule, such as where the minor is married or has received court authorisation to make a will. This means that the estates of the majority of persons under 18 are dealt with under the laws of intestacy.

The testator (person making the will) must have testamentary capacity at the time of giving their instructions and when the will is signed. A person has testamentary capacity if they:

  • understand the nature and effect of a will;      

  • understand the nature and extent of their property;

  • comprehend and appreciate the people that they should consider for distribution purposes; and 

  • are not suffering from any disorder of the mind or mental incapacity.

Financial advisers may express concerns to their client’s lawyer regarding the client’s mental capacity but it is the lawyer who deals with the issue.

Court Authorised Wills

In all Australian states and territories except WA, a person can apply to the court for an order permitting a will to be made for a minor.

Example

Jenna is 16 years old and a star tennis player in NSW. She has already accumulated significant wealth and this is likely to continue. If Jenna dies without a will, her estate would be distributed under the intestacy rules. Jenna wants all of her estate to go to her mother, who has cared for her all these years. Jenna could apply to the Court for an order enabling her to make a will under which she could leave all of her estate to her mother. The Court will then exercise its discretion whether to approve Jenna’s application. The fundamental test to be satisfied is that the proposed will reflects Jenna’s testamentary intentions.

In all Australian states and territories, a person can also apply to the Court to make a will for a person lacking testamentary capacity. Generally, the application must satisfy the following criteria:

  • The person lacks testamentary capacity; and

  • The proposed will (or alteration or revocation) accurately reflects the intentions of the person as if they had testamentary capacity; and

  • It is reasonable in all of the circumstances for the court to authorise the will and make the orders.

Example

Mrs Korp was found assaulted and in a coma on 5th February 2005. She died in August 2005 without regaining consciousness. She had made a will under which she nominated her husband as her sole beneficiary and if he predeceased her, then her children were to benefit equally. The mistress of Mr Korp was convicted of the attempted murder of Mrs Korp, in which her husband was implicated.

Prior to Mrs Korp’s death, Mrs Korp’s daughter applied to the Court to have Mr Korp removed as a beneficiary under her mother’s will. The Court accepted that such a will would reflect the likely intentions of Mrs Korp and approved a statutory will to this effect.

Formal requirements

Each state and territory has its own legislation that sets out the procedure for making a valid will. Although the rules vary, generally some or all of the following are required under legislation: 

  • The will must be in writing

  • The testator and two witnesses should be present throughout the signing process 

  • The two witnesses cannot be beneficiaries of the will or a relative of a beneficiary of the will 

  • The testator and the two witnesses sign the will at its end with their usual signatures. It is good practice (but not essential) for all parties to sign each page of the will and for the full names and addresses of the witnesses to be stated 

  • The will should be dated

Revocation of wills

A will remains in force until the testator formally changes or revokes it. A will can be revoked by various means.

A will or any part of it may be revoked by a later will. A common practice is to insert a revocation clause in the will document which provides that all earlier wills (or other testamentary documents) are revoked.

Another way to revoke a will is by way of burning, tearing or otherwise destroying the will. This must be done by either the testator or by some person in the presence and at the direction of the testator with the intention that the will should be revoked.

Any intentional destruction of the will should be communicated to all advisers to avoid any potential confusion in searching for non-existent wills.

Effect of marriage, separation and divorce

In most Australian states and territories, legislation provides that a person’s will is automatically revoked when they get married or register a deed of relationship, unless the will is made “in contemplation” of the marriage or deed of relationship. If the will already provides for the partner/spouse, those parts of the will would not be revoked. This rule does not apply when a de facto relationship commences (without a deed of relationship).

In the case of divorce or revocation of a deed of relationship, the laws will generally interpret the will as if the former spouse had predeceased the testator (Western Australia is an exception to this). 

Example (not WA)

Ben made a will when he was happily married to Vicki. He left 60% of his estate to Vicki and the remaining 40% to their 2 children. His will stated that if Vicki predeceased him then “her” 60% share passes to their 2 children (i.e. their 2 children receive the entire estate).

Six years later, Ben and Vicki divorced and Ben died shortly thereafter. He had not updated his will.

Under succession laws, Vicki is deemed to have died before Ben and even though Vicki is still alive, the bequeathment of 60% of his estate to Vicki will fail and instead pass to their 2 children along with the remaining 40% (i.e. the children receive the entire estate).

Example (WA only)

Ben made a will when he was happily married to Vicki. He left 60% of his estate to Vicki and the remaining 40% to their 2 adult children. His will stated that if Vicki predeceased him then “her” 60% share passes to their 2 children (i.e. their 2 children receive the entire estate).

Six years later, Ben and Vicki divorced and Ben died shortly thereafter. He had not updated his will.

Under WA succession laws, Ben’s will is deemed to have been revoked and his estate will be distributed as if he died without a will i.e. it will be assumed he died intestate and his estate will be distributed according to the laws of intestacy in W.A.

NOTE

Separation is not the same as divorce. If a person has separated from their partner after making a will, their whole will remains valid.

Example

Thomas lives in NSW and made a will under which he appointed his spouse Silvia as the sole executor and beneficiary of his estate. Sometime later, Thomas and Silvia decide to separate. A couple of months after the separation, Thomas dies. He is survived by Silvia and their two children. At the time of Thomas’s death he had not updated his will. Despite their separation, Thomas’s will is still valid.

NOTE

Clients who have any significant relationship changes should also review their financial and medical power of attorney because separation and divorce generally do not have any effect on the validity of these documents. 

 

For any retirement planning queries, please contact a BDM.

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