What’s involved in making a Will?
This article explains the basics of making a Will.
What does a Will do?
The purpose of a Will is to deal with your assets on your death. As you have the potential to acquire significants assets over the course of your life, it is important to have a Will. A Will can be updated as your circumstances change.
Who makes a Will?
A Will is made in writing by the Willmaker (sometimes called a ‘testator’ for a male and a ‘testatrix’ for a female, but in this article and in this firm, the term Willmaker is used).
The Will must be signed by the Willmaker in front of two witnesses. Those two witnesses must then sign the will. Thus, when a Will is signed, at least three people will be present:
- The Willmaker
- Witness 1
- Witness 2
Rules and procedure matter when making a Will
A Will is an area of law where strict form and procedure matter. This is to ensure the integrity of the Will and that it has not been changed after signature. For example:
- the witnesses must not be beneficiaries of the Will. Usually the witnesses are the lawyer who prepared the Will, and another lawyer or a legal assistant.
- the Will is usually signed by the Willmaker and the witnesses with the exact same pen. This provides some evidence that the Will was signed with all 3 people present together.
- the Will must not be unstapled and then stapled back together, and not have any paperclips stuck to it. There must also not be any handwritten additions or marking on it. This again is to ensure that the integrity of the Will is intact.
These matters are checked by the Probate Registry and if they discover an irregularity, the administration of the Will may be delayed (and legal costs increased).
What property can I give away with my Will?
A Will is used to dispose of property owned by the Willmaker. This includes:
- land
- money in bank accounts
- shares
- cars
- furniture
- personal possessions (jewellery etc).
Some things that cannot be disposed of by Will include:
- property in trusts (such as family trusts and unit trusts)
- jointly held property (such as land and bank accounts, which transfer on death to the other joint owner(s) as a matter of common law)
- life insurance policies
- superannuation interests
While these things cannot be disposed of by Will, a competent lawyer will ensure that as part of your estate planning, these matters are dealt with.
Are there restrictions as to whom I can leave my property?
There are no real restrictions on how or to whom property may be disposed. You can leave everything to your spouse, or you can divide equally between spouse and children, or you can give specific items to specific people and then give “what’s left over” (called the residuary) to your spouse or children or charity. You can give it all to your neighbour if you so desire.
However, it is important to realise that a Will is not necessarily final. The directions in your Will can be challenged. The Inheritance (Family Provision) Act 1972 allows the following people to challenge a Will in Court on the basis that the Will left them “without adequate provision for his [or her] proper maintenance, education or advancement in life”:
- the spouse of the Willmaker;
- a person who has been divorced from the Willmaker (yes, ex wives and husbands);
- the domestic partner of the Willmaker;
- a child of the Willmaker;
- a child of a spouse or domestic partner of the Willmaker being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the Willmaker immediately before his death;
- a child of the child of the Willmaker (i.e. grandchildren);
- a parent of the Willmaker who satisfies the court that he cared for, or contributed to the maintenance of, the Willmaker during his or her lifetime;
- a brother or sister of the Willmaker who satisfies the court that he/she cared for, or contributed to the maintenance of, the Willmaker during his or her lifetime.
In addition to the above grounds, a Will may be challenged on the basis that the Willmaker did not have adequate legal capacity to make the Will. For example, it could be asserted that the Willmaker had dementia and did not know what they were doing when making the Will.
It could also be asserted that the Will was fraudulent, or not properly executed, or lacked formality (again, making a Will is an area that requires procedure and compliance to rules).
So while there are no upfront restrictions, there are a number of ways to challenge a Willmaker’s intentions and wishes.
So what exactly does a Will look like?
There is no legally mandated form as to what a Will looks like or must contain. However, over the years, a certain ‘convention’ has formed and a Will usually takes the following form and specifies the following things:
- An introductory paragraph stating the name, address and occupation of the Willmaker and that the document is their Will
- A statement that all previous Wills are revoked
- Who the legal personal representatives (also called executor) will be. This person gives effect to the terms of the Will
- If the Will creates trusts, who the trustee will be
- If there are minor children, who the guardians of those children will be
- Specific gifts of property to specific people
- What to do with the residuary estate after specific gifts have been made
- Funeral wishes
- A statement that the document is intended to take effect as a Will
- Signing clauses
Trusts in Wills (Testamentary Trusts)
Some Wills contain instructions for trusts. Rather than give property away to individuals, the Will provides that property is to be put on a trust for the benefit of certain people. This means that those people may have the right to the benefit of the property, but they do not actually own it or receive it in their own name.
This is usually done when a potential beneficiary has a ‘risky’ profile. For example, a father may wish to give his son some land and money, but that son is self-employed (and so exposed to claims by creditors and employees and so forth). To give his son the benefit of that property while reducing or eliminating the risk of it being seized, it is put on trust. The trust will specify how and when the son gets the property. Another risk profile is where a child is gambler or alcoholic and there is a risk that any gift will be squandered away on betting or booze.
Testamentary trusts are also used if the Willmaker has young children, or grandchildren. The property is held for them until they reach a more mature age. There is also a tax benefit associated with this because any income from the testamentary trust is taxed to the children at marginal tax rates (whereas a trust made in life will see tax rates at high as 66% attached to any income distributed to minors).
A testamentary trust can be as simple as a few paragraphs, or it can take the form of a trust deed (similar to a family trust made in life) attached as an annexure to the Will.
How is a Will made?
See a lawyer and lawyer only. Wills are legal documents and probably one of the most important documents you make. Once you die, the Will cannot be changed by you, so every Will should be drafted as if the Willmaker were to die in the near future (however rest assured that for so long as you are alive and have capacity, you can change your Will).
The lawyer will consider if there is an issue of legal capacity to make a Will, particularly if the Willmaker is old. The lawyer may ask that the Willmaker and Willmaker only be present at the appointment, and that any children or companions wait outside until the appointment is over. This is to ensure the Willmaker is not acting under coercion or duress of children or other people.
At the end of your appointment with the lawyer, you will sign an informal ‘Wills instruction sheet’ that confirms your wishes. This document serves two purposes:
- The lawyer will prepare your Will based on it;
- If you get hit by a bus after leaving the appointment, that document, whilst informal, may still be able to be admitted through Probate as your Will (with the consent of the Court).
It is common to do a power of attorney and advance care directive at the same time a Will is made.
What about a Will kit?
Will kits are a bit like making complex repairs to your car without a mechanic. You can watch a YouTube video on how to repair a head gasket and think ‘easy enough’, only to realise when you are putting it back together that you did not apply sealant to the new gasket and that you have a couple of bolts leftover. It is only a matter of time before the gasket fails and your engine block is a mess.
Don’t risk it. Lawyers exist for a reason (as do mechanics).
Some common issues with Will kits:
- Inadequate proof of capacity to make a Will
- Improper witnessing
- Not kept in a safe manner (meaning it is not possible to tell if the Will kit has been tampered with)
- Handwritten (and so it is not possible to tell if there have been alterations after the Will kit was first signed)
Decoding legal jargon
Wills are an area that still contains some antiquated legal jargon, which we decode below
- Testator: Latin term for a male who makes a Will
- Testatrix: Latin term for a female who makes a Will
- Bequest: a gift if property other than land made through a Will. Today the term ‘give’ is commonly used
- Devise: a gift of land made through a Will. Today the term ‘give’ is commonly used
- Legacy: a gift received under a Will.
Bosco Law does not use legal jargon unless necessary. We call a person making a Will a ‘Willmaker’ and gifts of property are made by stating ‘I give …. to ….’.
Conclusion
As you can see, there are many things to consider when making a Will. Bosco Law can help you with your entire estate planning needs. Please contact Peter Bosco on 0422 173 574 or peter@boscolaw.com.au for further information.
This article contains general information for informational purposes. It has not been tailored to your individual circumstances. It is not legal advice and you should not rely on it to make legal decisions.