A Will is a legal document that sets out who you want to receive your assets when you die. Making a Will is the only way you can ensure your assets will be distributed according to your wishes when you die. Studies show that at least 45% of Australians do not have a valid Will. If you die without a Will your estate will be distributed according to a pre-determined formula and, if your only living relatives are more distant than cousins, your estate will pass to the government.

For a Will to be valid it needs to comply with certain criteria:

• Unless married, you must be over 18 years old (The Supreme Court can approve a Will for people under 18 only in exceptional circumstances)
• 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)
• You must have "testamentary capacity". This means:
  • 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.

Professional Will-makers such as the NSW Trustee & Guardian will ensure areas covering testamentary capacity are addressed in the process of drafting a Will and we will provide impartial witnesses. We are also able to provide advice in relation to estate planning and who may contest your Will.

Preparing your own Will is not advisable. A Will must conform to strict legal requirements otherwise the Courts may decide it is not valid. If this is the case your assets will be distributed according to a predetermined formula and not as you intended. Anyone who is not legally qualified risks making a mistake, creating uncertainty or losing opportunities for good estate planning if they make a Will for themselves.

The precise wording of a Will is a specialised and important legal task. The ordinary meaning of words is not necessarily the same as their legal meaning. Ambiguous wording is extremely common in home-made Wills and may result in substantial cost and delay in having the Supreme Court resolve the ambiguity.

A Will is an important legal document. It is therefore advisable to have your Will professionally drafted and ensure your wishes are properly recorded and carried out.

If you die without a Will, you die intestate. This means, as you didn't have a Will, no-one knows who you wanted as your beneficiaries and who you wanted as your executor. Your assets will 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, family and friends suffering unnecessary financial hardship and emotional stress. If you are in a de facto 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.

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.

Most people realise the importance of making a Will. However, a Will can only be used if it can be found when required. It is important to store your original Will in a safe place. It's a good idea to tell someone close to you where your Will is stored. There have been many instances where family and friends were aware that a Will existed but they were unable to locate it when it was required.

NSW Trustee & Guardian's Will Safe is a secure place to store your Will, Power of Attorney and Enduring Guardianship documents, and they are easy to access when needed.

Your Will expresses your wishes at a particular point in time. 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 a de facto relationship
• Having children or grandchildren
• Your children having remarried or divorced and have extended families
• The executor named in the Will, having become ill, is unable to handle the responsibility, or has died
• A beneficiary named in the Will having died: when writing your Will, it is wise to name substitute beneficiaries
• Death of spouse
• The value of legacies diminishing over time: while you may have left a sum of money that seemed significant when you last made your Will, what is it worth in 'today's' dollars?
• Retirement often results in people restructuring their affairs. This is an ideal time to be proactive in your estate planning and possibly look at setting up tax effective arrangements through your Will
• When you buy or sell assets: there are many examples of people bequeathing assets which they sold before they died. This resulted in some beneficiaries receiving nothing, while others received significantly more than was intended in the original Will.

We recommend that you review your Will every five years or whenever you have significant changes to your circumstances such as those outlined above.

If you marry after you have made a Will, the Will is generally revoked, unless it was made in anticipation of marriage. Marriage will not affect a gift to the person who is your spouse at your date of death. If you divorce after you make your Will, it only revokes or cancels any gift to a former spouse. It also cancels your spouse's appointment as executor, trustee or guardian in the Will, but will not cancel an appointment of a former spouse as trustee of property left on trust for beneficiaries that include children of both you and the former spouse. However, this won't apply if the Court is satisfied that the Will-maker did not intend by divorce to revoke the gift or appointment. Those issues require specific legal advice.

While you are entitled to leave your assets to anyone you wish, in some circumstances, friends or relatives who believe they have not been sufficiently provided for are entitled to contest your Will.

People who can contest your Will under Succession Act 2006 are not restricted to your spouse and children. Claimants can include a defacto 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.

An increasing number of people now have complicated family structures such as blended families and second marriages. This may increase the likelihood of your Will being contested.

As a professional Will-maker, the NSW Trustee & Guardian is able to advise people making Wills on how to address possible challenges.

The fees NSW Trustee & Guardian charge for administering an estate are set by government and are structured differently to charges a private solicitor makes. This is because NSW Trustee & Guardian operates under different legislation. Overall, it is very difficult to compare NSW Trustee & Guardian's costs with those of a private solicitor. Many solicitors charge on a 'time spent' basis and the amount of time spent will depend on numerous factors, such as the complexity of the estate. Some solicitors charge higher hourly rates than others so the fees charged by one solicitor may be quite different to another.

NSW Trustee & Guardian charges $330 (including GST) to prepare a Will. When you make your Will with NSW Trustee & Guardian you can choose your own executor, or choose us for independent and impartial services. Discounts apply if you have both your Will and Power of Attorney planning ahead documents prepared by NSW Trustee & Guardian.

 

If you own assets of financial value overseas (including real estate, shares or bank accounts) we recommend you make a separate Will dealing with those overseas assets, rather than having one Will expressed to deal with all assets.

NSW Trustee and Guardian is able to provide advice regarding your Will so far as it deals with your assets in Australia. However we are not able to give advice as to whether your Will is effective to dispose of your overseas assets. The inheritance laws in other countries may be significantly different to those in Australia.

For example, some countries have laws that result in certain family members being automatically entitled to a specified share in your estate regardless of the terms of your Will.

There may be laws regarding who may contest your Will and taxation laws that may impact your estate and your beneficiaries. There may even be different requirements for the execution of a valid Will.

For these reasons it is recommended that you make a Will dealing with your Australian assets and that you retain a person who is qualified in the laws of the country where your other assets are held to prepare a Will dealing with those assets.

This approach ensures that you obtain professional legal advice in each country, giving proper consideration to such issues as the appointment of executors, the local procedures for estate administration, taxation implications such as inheritance tax and other inheritance laws.

Having separate Wills dealing with assets in the different countries will minimise the chance of administrative difficulties occurring after your death, which can occur when the original Will is held in one country while there are other assets in another country that need to be distributed.If there is a separate Will for each country, this means that authority to administer the estate (in Australia called probate) can more easily be obtained and with less delay.

In 2015 Australia became a signatory to an International Convention in relation to International Wills. Not all countries are signed up to the Convention, but for those countries that have signed up, there is a standard form of Will that will be accepted as a validly executed Will. However, the law in each country still applies in respect of the administration of the estate and so issues may still apply.

We recommend that if you have assets of financial value overseas that will need to be formally administered after your death, you have separate Wills dealing with your assets in each country.

We are experienced with a range of different circumstances and prepare Wills for people with straight-forward and more complex circumstances, but there are a few exceptions. We do not prepare Wills for the following circumstances: 

• Where the testator wishes to set up family discretionary trusts in their Will with a focus on tax minimisation and asset protection for beneficiaries. These trusts often enable the trustee to distribute between a wide range of potential beneficiaries. However, we do prepare trusts (including discretionary trusts) for vulnerable and incapable adults. 
• Contracts for mutual Wills (except if you have previously made contracts for mutual Wills with NSW Trustee & Guardian and are returning to update your Wills). An example of contracts for mutual Wills  is where  spouses (often in a second marriage or second relationship) agree to make their Wills in a certain way and agree that upon the death or incapacity of one of them, the other cannot make a new Will which reduces the provision to their spouse or their spouse’s children/grandchildren.  
• Wills for clients who own businesses except where the client is (a) a sole trader; or (b) the sole director/shareholder of a private company through which the business operates; or (c) the clients are spouses and they are the only directors and shareholders of a private company through which the business operates. 
• Wills dealing with overseas assets, except in limited circumstances (for example, if the overseas assets are of low value and do not include real estate or if the assets are in certain limited overseas countries). If you have overseas assets we are still able to make your Will dealing with your Australian assets. It is advisable that you consult a suitably qualified lawyer or Will maker in the overseas jurisdiction to obtain advice and put a Will in place dealing with your overseas assets. 
  
  

We are ready to help and talk through your wishes if you are unsure whether any of the above applies in your situation.