Good Will Week – protecting the ones you love
Flying overseas soon? Been divorced? Changed relationships? Own your own house or have a mortgage? Have children? Chances are you are one of the 45 per cent of Australians who don’t have a will. Maybe you don’t think you need one. Or don’t figure on dying soon! Who does? Perhaps you should take the opportunity during Good Will Week, August 5-11, to re-think your position and protect those you love.
Dying without a will
If you die without a will, you die “intestate”. This means, without a will, no-one knows who you wanted to benefit from whatever property you may own. Your assets would then be distributed according to a pre-determined formula with certain family members receiving a defined percentage of your assets, despite what you may have wished. Dying intestate can result in your surviving spouse, partner, family and friends suffering unnecessary financial hardship and emotional stress. If you are in a de-facto or same sex relationship, it is necessary to supply sworn evidence that the relationship existed. If you die intestate and have no surviving relatives closer than cousins, the State Government will receive your estate.
It is advisable to regularly review your will as your circumstances change so that it accurately reflects your current wishes. Situations where you may want to update your will include: Marriage; Separation or divorce; Starting or ending a de-facto relationship; Birth of children or grandchildren; Your children have remarried or divorced and have extended families; The executor named in the will, is seriously ill or has died; Your spouse or partner or other beneficiary has died.
Is your will valid?
Unless married, you must be over 18 years old to draft a will. It must be in writing – it can be handwritten, typed or printed. It must be signed by the person making the will and witnessed by two or more witnesses (beneficiaries should not be a witness as it may cancel out their entitlement).
“Testamentary capacity” is also an issue. This doesn’t just effect the old and mentally ill. To have capacity: You know the legal effect of a Will; You must be aware of the extent of your assets; You must be aware of the people who would normally be expected to benefit from your estate; You must not be prevented by reason of mental illness or mental disease from reaching rational decisions as to who is to benefit from your will.
De-facto or same-sex relationships without a will
If your partner can satisfy the legal requirements proving the relationship, they may be entitled to share in your estate on your death. The necessity of proving the relationship can result in additional expense and distress at a time when they are grieving. It is much easier to draft a will naming your partner as a beneficiary.
Storing a will
It is important to store your original will in a safe place. Tell someone close to you where it is stored. It is common for family and friends to know a will existed but be unable to locate it when it mattered.
Who can contest a will?
In some circumstances, friends or relatives who believe they have not been sufficiently provided for are entitled to contest your will. Claimants are usually spouses or children but can include a de-facto partner, any other dependants, or a former spouse. The person needs to convince the Court that you failed to make adequate provisions for their maintenance, education or advancement in life.
If you need to draft a will you can get a do-it-yourself kit, but unless you understand the issues above well, you may want to see a competent lawyer who drafts wills or possibly get assistance from the NSW Trustee & Guardian. However you do it, having a valid will in place will help ensure that when you die, your loved ones are cared for.
Mark Hanna is the Principal of Mark Hanna Lawyers.