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Back to "Wills and Estates Newsletter - April 2017"

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Why you need a Will and what to do if your Will needs changing

After years of working hard and accumulating wealth, it is surprising how many Australians don’t have a Will or don’t have an up-to-date Will. Whilst there is no legal obligation to have a Will, the key benefits of having a Will include:

  • your estate passing to those people who you wish to benefit;
  • the ability to stipulate the age beneficiaries must attain in order to take their inheritance;
  • the ability to select who to appoint as executor and trustee; and
  • the ability to appoint guardians to care for your minor children.

If you die without a Will, the laws of intestacy (in NSW, these are contained in the Succession Act 2006) will determine how your estate will be distributed. These laws may result in your estate passing to people who you don’t wish to benefit instead of to those who you do.

Homemade Wills

It is possible to prepare your own Will, however it is recommended a solicitor prepares it for you. Common problems with homemade Wills include:

  • the Will is unsigned or incorrectly witnessed;
  • alterations written on the Will are unsigned or incorrectly witnessed;
  • the language used is unclear (eg gift to ‘my family’ – who does this include and how is the estate to be distributed between them?);
  • a gift is made to an organisation that does not exist (eg gift to ‘the Blind dogs’ when there is no organisation of that name;
  • the Will does not contemplate who is to receive a gift when a beneficiary has predeceased the Will-maker; and
  • not all of the estate is dealt with (eg a gift of property only, when there are other assets such as bank accounts and shares).

Where the formal requirements of writing, signing and witnessing are not complied with, the Court will be required to determine whether the document is in fact a Will and to interpret any uncertain terms.

Storage and security of your Will

If you already have a Will, do you know where the original is kept? If unfound after your death, it may be assumed that you destroyed your Will with the intention of revoking it.

If a solicitor prepared your Will, most firms offer secure storage at no cost. They will also keep a copy of your Will on file if you decide to keep the original at home.

Reviewing and updating your Will

When was the last time you reviewed your Will? If there has been a change in your family circumstances or assets since you prepared your Will or your last review, it may require an update.

Changes in family circumstances include:

  • marriage and divorce;
  • entering a de-facto relationship;
  • births and deaths of family members; and
  • poor health, addictions and bad spending habits of family members.

Changes in assets include:

  • purchasing a property (locally or overseas);
  • establishing a business;
  • setting up a family trust, unit trust and self-managed superannuation fund; and
  • receiving an inheritance.

How we can help

At Carroll & O’Dea Lawyers, our solicitors can assist with the preparation and storage of your Will as well as preparing updates to your Will when your circumstances change.

Josephine Heesh, Partner
Michael Crowe, Associate

Need help? Contact us now.

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