A Will is a legal document that sets out your wishes in relation to the distribution of your estate (your real and personal assets) after you pass away.
According to The Public Trustee more than 50 % of Australian adults do not have a valid Will.
If you have no Will (i.e. if you die “intestate”) your estate may not be distributed in accordance with your wishes but in accordance with the Administration Act 1903.
Reasons for having a valid Will are:
- Your personal belongings and assets go to the beneficiaries of your choice and family members and partners are provided for after you pass away.
- If you have young children, you may nominate a legal guardian (the person who will look after your children until they are 18 years of age).
- If you have a business, a Will can ensure a smooth legal transition to family members/beneficiaries.
- The likelihood of an estate dispute may be reduced.
Common Issues with Wills
Formal Legal Requirements
A Will can be made by a person over 18 years of age and who has mental capacity. A valid Will must be:
- In writing (typed or handwritten)
- Signed by the testator or testatrix (the person making the Will) in front of two witnesses
- Signed by at least two witnesses in the presence of the testator/testatrix
If the document does not meet the necessary legal requirements (as set out in the Wills Act 1970) an application may be made to the Supreme Court for an order that the document constitutes your Will.
Terms of a Will
The law relating to the interpretation and application of Wills can be very technical.
If problems arise and the beneficiaries cannot come to an agreement, the executor/s can make an application to the Supreme Court of WA for appropriate relief. The Court may make declarations regarding the meaning of the terms of the Will and may (where appropriate) strike out parts of a Will on the grounds that such are invalid and unenforceable.
Disputes regarding the meaning and effect of Wills can be costly and are very easily avoided by having a lawyer draft your Will. The cost of having a Will professionally prepared is small compared to the potential cost of legal disputes.
Home Made Wills – DIY Will Kits
Homemade Wills can be troublesome because they may appear reasonable and clear but in practice they may not be. For example:
- If you leave a specific property to a child on certain conditions, those conditions may not be enforceable.
- You need to consider taxation implications. Giving an investment property to one child and your home of equal value to your other child may result in those children receiving an unequal inheritance because of capital gains tax (CGT).
- If you give a property to one of your beneficiaries which has mortgage over it, you will need to use precise language if you want the beneficiary to assume liability for the mortgage or receive the gift free of that liability.
- Joint assets don’t form part of the estate because the survivor is entitled to your interest. Likewise, land owned by a trust may not form part of your estate even though you may think of it as yours. If you have divided your estate on the incorrect assumption that certain assets form part of your estate, then your Will could lead to unintended unfairness.
Divorce and Marriage
A Will is no longer valid if you and your partner divorce after the Will was made or if you married after the Will was made (unless the Will specifies that it was made in contemplation of marriage).
If you have recently married or divorced you should consider making a new Will straight away.
Family Provision Act
You are free to write your Will in any way you choose. However, pursuant to the Family Provision Act 1972 the Supreme Court of WA has the power to vary a Will on the application of a spouse, child, dependant and other entitled persons who are defined in that Act. The Court will only vary a Will if it considers that in all of the circumstances the Will failed to make reasonable provision for the applicant’s proper maintenance, support, education or advancement in life.
The question of whether proper provision has been made depends on a variety of factors including the size of the estate and the health, income, financial resources and needs of the applicant.
Challenges to a Will
When making a Will it is important to consider who may have a claim to your estate and to ensure that they are adequately provided for. If you don’t want certain family members to inherit anything, you should seek legal advice about whether (for example) a statement giving your reasons should be included in the Will or in an accompanying document. That may not prevent challenges but could amount to a strong defence.
There could be a good reason why you wish to leave someone out of your Will. For example you might have given one family member a substantial financial gift in the past and therefore excluded that person in the Will. There may be other ways of minimising the risk of an application being made against your estate under the Family Provision Act 1972.
- Offer advice in relation to your Will to ensure that your Will is clear and practical.
- Help you navigate the pitfalls and ensure that your Will correctly reflects your wishes and avoid any unintended consequences.
- Minimise the risk of your Will being challenged which can lead to costly legal disputes.
- Ensure that your Will is properly signed and that your Will complies with all legal requirements.
- Give you piece of mind.
We offer a fixed price for standard Wills. If your Will is complex (non-standard) then we can give you a realistic estimate of the cost.
Other Estate Matters
Probate is the process of having a Will validated by the Supreme Court. The executor named in the Will needs to obtain a legal document named ‘Grant of Probate’ from the Supreme Court, so that the wishes in the Will of the deceased can be carried out by the executor (who administers the estate of a deceased person).
Banks, Landgate and share registries may refuse to allow any dealings with estate property until the Court has issued a Grant of Probate.
Any irregularities with a Will may complicate probate applications and increase costs. For example if a Will has a staple mark suggesting that a codicil (a document altering a Will) was attached or suggesting that the Will was tampered with, an affidavit setting out how the staple mark got there needs to be sworn and filed with the Court. The Court may issue any number of requests (requisitions) for further information to be verified on oath.
Letters of Administration
If the deceased has no valid Will, then the appropriate person (usually the surviving spouse, de facto spouse or other close relative) may apply for ‘Letters of Administration’.
If the Will does not mention an executor or if the executor named in the Will is unwilling or unable to apply for a Grant of Probate, then the Supreme Court may grant ‘Letters of Administration with the Will Annexed’ to an appropriate person.
Enduring Power of Attorney
An Enduring Power of Attorney (EPA) is a legal document that allows you to appoint another person (the Attorney) to manage your assets and financial affairs. You may stipulate that the EPA comes into force straight away or only when you become mentally incapacitated. You can allow an attorney to do anything that you can do or you can restrict the Attorney’s power.
Irrespective of how wide the terms of an EPA are, an Attorney cannot write your Will, use the EPA contrary to your interests and cannot make personal and lifestyle decisions for you (including decisions about your medical treatment).
Enduring Power of Guardianship
An Enduring Power of Guardianship (EPG) is a legal document that allows you to appoint another person to make personal decisions on your behalf in relation to your lifestyle and medical treatment.
An EPG may be required if there is a future risk that you will no longer have mental capacity to make important decisions yourself.
If you require any further information about these legal documents, then please phone Kelly on 6162 8271 who will be happy to assist.
For more information please visit the Supreme Court of Western Australia’s website: http://www.supremecourt.wa.gov.au.
Wills & Estate Matters – Our Services include:
- Preparation of Wills
- Preparation of Enduring Powers of Attorney (EPA)
- Preparation of Enduring Powers of Guardianship (EPG)
- Applications for Probate
- Application for Letters of Administration or Letters of Administration with the Will annexed
- Advice and representation in respect to any dispute regarding a deceased estate
- Applications to the Court for “judicial guidance”
- Applications to the Court for declarations regarding the meaning and effect of terms of a Will
- Lodgement of caveats at the Probate Office
- Issuing Notice to Pass Accounts and Court representation in respect to the same
- Bringing and defending applications challenging the adequacy of Wills
(Family Provision Act applications)
- Guardianship & Administration Orders