A Guide to Making a Valid Will

A Will is a crucial legal document that outlines how a person’s assets will be distributed after their death. In Victoria, Wills are governed by the Wills Act 1997. By creating a Will, individuals can retain control over the division of their estate, appoint executors to carry out their wishes, allocate gifts to specific individuals, and make arrangements for their final resting place.

The Advantages of Making a Will

The primary advantage of making a Will is the ability to determine the distribution of one’s estate according to personal preferences. By electing executors and beneficiaries, individuals can ensure that their assets are allocated as desired. This allows for a smooth transition and peace of mind, knowing that loved ones will be taken care of according to their wishes. Conversely, if someone passes away without a Will, their estate will be treated as intestate, and the distribution will typically follow the laws of succession, which may not align with the deceased’s intentions.

The First Step: Seeking Legal Advice

To ensure the validity and effectiveness of a Will, it is crucial to seek legal advice and engage a qualified legal practitioner to draft the document. Professional assistance ensures that the Will accurately distributes assets, adheres to legal requirements, and is appropriately signed and witnessed. Failing to meet these requirements can render the Will invalid, potentially leading to the disregard of the Will maker’s wishes.

Requirements for a Valid Will

Several strict requirements must be met for a Will to be considered valid under the Wills Act. The Will must be in writing and signed by the Will maker in the presence of two witnesses. The witnesses, in turn, must sign the Will in the presence of the Will maker. Additionally, the Will maker must have the intention to give effect to the Will when signing the document.

Choosing Witnesses for the Will

The signing of a Will must be witnessed by two adults, preferably individuals over the age of 18. These witnesses must observe the Will maker signing the document and subsequently sign it in their presence. While the presence of both witnesses during each other’s signing is not necessary, it is essential that both witnesses see the Will maker sign the Will.

Understanding the Role of an Executor

An Executor and Trustee play a crucial role in carrying out the wishes outlined in a Will. Executors are appointed by the Will maker and are responsible for ensuring the proper execution of the Will’s instructions. It is advisable to appoint multiple Executors, not exceeding four, and to inform them of their role and responsibilities. Executors may be entitled to receive a commission, which can be detailed in the Will or agreed upon by the beneficiaries.

Distributing Assets in the Will

To ensure the proper distribution of assets, it is recommended to create a comprehensive list of all owned assets. This list should include properties, vehicles, jewelry, shares, valuable possessions, and monetary assets. The Will should clearly state how these assets are to be divided, specifying the full names of beneficiaries and relevant details such as property addresses or monetary amounts. Clear and precise instructions minimize the risk of challenges or disputes, emphasizing the importance of seeking legal advice during the Will drafting process.

Instructing Medical Care Preferences

While it was once common for Wills to include directions regarding medical care before death, these clauses are now largely redundant due to the prevalence of enduring powers of attorney for medical treatment governed by the Medical Treatment Planning and Decisions Act 2016. Creating a medical power of attorney allows individuals to appoint a trusted decision maker for medical matters when they are unable to make decisions themselves.

Additional Instructions in the Will

Will makers can include instructions related to their remains’ treatment, such as preferences for burial, cremation, organ donation, or medical and scientific purposes. Communicating these wishes to the Executor is crucial, as the Will might not be accessible until after the funeral. Informing the Executor in advance allows them to act accordingly.

Taking Care of Children

To ensure the welfare of children in the event of a parent’s passing, a Will can include a guardianship provision. This provision appoints a guardian who will be authorized to provide care, accommodation, education, and other necessities for the children. However, it is important to note that the Family Court ultimately decides matters of guardianship in the best interests of the children.

Superannuation and the Will

Superannuation monies do not automatically form part of a person’s Will. Superannuation funds can only be distributed to the estate if the beneficiary is financially dependent on the deceased, with specific rules determining dependency. To ensure the desired distribution of superannuation funds, individuals should establish a binding death benefit nomination with their superannuation fund. This nomination directs the Superannuation Trustee regarding the beneficiaries and their respective shares.

Challenging a Will

Wills can be challenged on various grounds if a person with standing believes that the Will is invalid or that wrongful actions occurred during its creation and execution. Grounds for challenging a Will include lack of capacity or intent, lack of knowledge and approval, fraud, undue influence, or forgery. However, standing is essential, and challengers must demonstrate their interest in the Will, either as beneficiaries or as eligible persons according to the rules of intestacy.

Impact of Divorce on the Will

Marriage generally revokes a Will unless it was specifically drafted in anticipation of marriage. However, divorce does not render a Will entirely inoperative. After a divorce, dispositions or appointments related to the former spouse are revoked, while the remaining contents of the Will remain valid. Separation, on the other hand, does not have the same impact as divorce on the Will.

Considerations for Overseas Assets

If individuals hold assets or property in a different country, they should be aware that international laws may override the directions in their Will. Some countries have specific rules regarding the distribution of assets, necessitating the creation of a local Will in addition to an Australian Will. Seeking legal advice and understanding the regulations of each jurisdiction is essential for ensuring the appropriate disposition of overseas assets.

Creating a Will is a vital step in securing control over the distribution of assets after one’s passing. Understanding the importance of making a will empowers individuals to take control of their assets and ensure their wishes are upheld. By adhering to the requirements for a valid Will, seeking legal advice, and providing comprehensive instructions, individuals can ensure that their wishes are followed and their loved ones are properly cared for. A well-crafted and legally sound Will provides peace of mind and helps minimize potential conflicts or challenges, allowing one’s legacy to be preserved according to their intentions.

Read More : A Comprehensive Guide to Enacting a Will Legally