What you need to know about your last Will and Testament
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.
If you die without a Will (i.e. if you die “intestate”) your estate may not be distributed in accordance with your wishes but in accordance with the provisions of the Administration Act 1903 (WA).
According to the Public Trustee more than 50% of Australians aged 18 years and over do not have a valid Will. However, even if you have made a valid Will in the past, various events throughout your life may affect the validity of that Will.
Unless your Will states that it was made in contemplation of marriage then a subsequent marriage will revoke your Will. Without a valid Will your estate will be distributed in accordance with the relevant legislation (which may be different to your wishes).
In WA, if you were divorced after 9 February 2008 any Will made prior to your divorce is deemed to be revoked, unless a contrary intention appears in the Will or from other evidence. It is important to draw a distinction between separation and divorce. Often, separation will occur long before divorce, but separation will not invalidate or revoke your Will.
Family Provision Claims
Your Will contains your wishes of how your estate should be divided. If you made a “conscience” decision to leave out any dependants or close relatives then they may potentially apply to the Supreme Court seeking an order that adequate provision will be made for them out of your estate. These Family Provision applications are made on the basis that the testator (the person who made the Will) failed to make adequate provision for them having regard to their personal and financial circumstances.
Family Provision applications can be costly and may diminish the amount available from your estate for the distribution to all of your beneficiaries. What amounts to adequate provision depends on a number of factors and if in doubt you should seek legal advice.
Changes in Circumstances
If your financial or personal circumstances change significantly (i.e. you have children, inherit money etc.) then it is a good idea to review and update your existing Will or have one professionally prepared if you do not have one.
For information and advice, tailored to your personal circumstances, with respect to your Will or any estate matters please contact our office to make an appointment with one of our experienced lawyers on 6162 8271.