When it comes to drafting your Will, the importance is in the finer details. This may seem a cliché or perhaps throw-away comment, however many may not realise the legal requirements which must form part of your Will for it to be valid or to ensure your specific wishes are as ‘water-tight’ as possible. These legal requirements come hand in hand with specialised drafting and a broader understanding of how assets can be dealt with under your Will.

The Wills & Estates Team at Coutts Lawyers & Conveyancers can provide you with advice on all of your estate planning needs. The Team remove legalese and ensure you understand the purpose of each of your estate planning documents and that they meet your needs.

Frequently Asked Questions

A Will is a legal document that specifies who you want to benefit from your estate, and how you wish your assets to be distributed after you pass away. It is one of the most important legal documents you will ever sign, and making sure that your Will is up to date, well-structured and clearly written is key to ensuring that your assets will pass to the persons you wish to benefit. You can also use your will to nominate a guardian for your minor children or to record your funeral wishes. Having a valid will meets two goals – it ensures that your wishes are upheld and makes things easier for your family.

For a Will to be considered valid in New South Wales, it must be:

  • In writing;
  • Signed by the will-maker (or by a person the will-maker has directed to sign on their behalf if they are physically unable to sign it themselves); and
  • Witnessed by at least two independent people who are present at the same time the will-maker signs the document. The witnesses must also sign the will to confirm that they were present and witnessed it.

The Executor is the person or persons you appoint in your Will to administer your estate when you pass away. The Executor has the following responsibilities:

  • Making the funeral arrangements;
  • Applying for a Grant of Probate from the Supreme Court of NSW;
  • Paying the debts and liabilities of the deceased person;
  • Collecting, selling or transferring the assets of the deceased person;
  • Distributing the assets to beneficiaries who are nominated in the Will;
  • Setting up and administering any trust funds which were created in the Will; and
  • Dealing with any conflicts or challenges to your Will.

When someone passes away without a “valid Will” in place, they are said to have “died intestate”. What this means is that their assets will pass to a class of beneficiaries that have been pre-determined by the law in New South Wales, called “the rules of intestacy”.

Under the rules of intestacy, there is a statutory order of relatives created by the law to achieve a “blanket solution” to what the person who passed away without the Will might have done in their lifetime.

You must exhaust every relative who fits within the category before moving on to the next category and once an eligible relative is found, the process stops. If there are more than one relative in a category, then these relatives become equal beneficiaries of the estate.

The statutory order is as follows:

  1. Spouse, including a married or de-facto spouse and same-sex relationships.
  2. Children, including biological and formally adopted children but not step-children.
  3. Parents.
  4. Brothers and sisters.
  5. Grandparents.
  6. Aunts and Uncles.
  7. Cousins.

The deceased persons assets will only pass to the New South Wales Government if there are no eligible relatives of the deceased person.

The situation becomes much more complicated where the person who passed away leaves both a spouse and children who are not the biological children of their spouse, such as in a blended family scenario. In this situation, the law attempts to divide the estate assets between the spouse and the children, but it might not be exactly as the deceased person had wanted it to be.

This statutory order is subject to modification where the deceased person is an Indigenous Australian and the estate will be divided in accordance with the laws, customs and traditions of the deceased persons Indigenous community.

Having a do-it-yourself (DIY) Will or Will-kit is better than nothing, but it is certainly no substitute for professional advice and a legally drafted valid Will prepared by one of our lawyers.

The biggest problem with DIY Wills that we see is it is so easy to get them wrong! Even the simplest mistakes can cause unintended consequences or that the will is held to be invalid.

Some of the most common mistakes we see are:

  • Attempting to give away assets you don’t own – Your will can only dispose of assets that you own in your name on the date of your death. You are not able to include assets that you own jointly with another person, and you are not able to give away your superannuation or life insurance benefits either.
  • Being too specific – If the Will lists all the assets owned by the Will-maker such as their house, car, bank account, but fails to include a “catch-all” clause for the assets they might forget about, like employee entitlements, then these forgotten assets will be distributed in accordance with the rules of intestacy and pass to a class of beneficiaries determined by the law.
  • Illegible handwriting – It’s simple, if no one can read your Will, then you cannot be certain that your wishes will be upheld.
  • Failing to comply with the basic legal formalities for valid Wills by having the correct signatures and witnesses.

You should consider making a new Will if:

  • You have purchased a new house or inherit assets of your own.
  • You become married or enter into a new de-facto relationship.
  • You have children or formally adopt children.
  • You become separated or formally divorced from a spouse.

If you already have a Will, you should frequently review your will and update it if:

  • Your assets substantially change.
  • Your children are now adults and you have grandchildren.
  • Someone you have named as an executor or beneficiary has passed away or is no longer suitable.
  • You have changed your mind.

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