Preparing a Will

Traditionally, the drafting of Wills and the advice relating to Wills has been an area of the law where members of the public will turn to their lawyer for assistance. Over the years the main ‘competitors’ to lawyers in this area have been the Public Trustee, trustee companies and the proponents of the ‘home-made’ or ‘newsagent’s’ Will.

For various reasons the misconception has grown in the public minds that Wills may be a simple matter, and that the fees charged by lawyers to prepare Wills may be excessive, particularly in these days of word processors. It is true that a Will can be a simple and brief document. However, brevity does not necessarily equate with simplicity.

The importance of a will

A Will is a document which the law recognises as a means by which a person can give directions as to the administration of their estate and division of their assets following their death. It has been said that there are only two certainties in life, taxes and death. Accordingly, the preparation of a proper Will is a matter which every person should give consideration to at least once in his or her lifetime but preferably at regular intervals throughout their life.

It is especially important for same sex partners to prepare a will, despite the recent changes in legislation that allow shared distribution of estates, as it is sometimes difficult to prove that the relationship was de facto.

Generally, a Will should be reviewed every 2 years or in the event of a significant occurrence in your life such as a marriage, divorce, entering or leaving a de facto relationship, following the birth of a child, the death of a beneficiary, acquiring property not contemplated by your Will or disposing of property gifted under the Will; if the executor dies or becomes unsuitable; if the needs or financial circumstances of any beneficiaries change. Failing to have a Will that does not accurately reflect your current situation and intentions can potentially make for a lot of problems for those you leave behind.

Additionally, the consequences of failing to make a proper, valid Will or not having a Will at all is that the law will then impose a method of distribution of the deceased person’s assets. In New South Wales the Act takes into account the way in which a person may normally wish their assets to be distributed, this may not always be true and by doing so it may lead to unintended results.

When taking instructions for, and in drafting a Will, a lawyer should do so on the basis that the Will may be the final Will of the person. While a Will must deal with the present situation of the testator, the document should be flexible enough to take into account changes, especially because many people do not regularly review and update their Wills as they should.

Who can make a will?

Will-makers must be of sound mental capacity and be over the age of 18, unless the minor is married or contemplating marriage, or has approval from the court. Also, anyone is allowed to draft a will, however the will must be signed and witnessed properly otherwise application of probate may prove to be difficult.

Requirements of a valid will

The Succession Act 2006 (NSW) requires that:

• The will is in writing
• Signed by the will-maker or another person who is in the presence of the will-maker at the will-maker’s direction
• The signature is made in the presence of and acknowledged by the at least 2 witnesses, who must also be in the presence of the will-maker. Beneficiaries of the will cannot be counted as witnesses to the will.
• The signature must be made with the intention of executing the will
• Note: The signature does not need to be at the foot of the will

However, these provisions do not apply to a will made by the order of the court.

If you would like more information or help preparing a Will, please complete and submit the express enquiry form on the top right hand side of this page or call us on 1300 QUINNS (1300 784 667) or on +61 2 9223 9166 to arrange an appointment.