The Importance of Having a Will

Do you want to know more?

We can’t see the future and we can’t predict unfortunate circumstances, but we can plan for them, and we can help to make them easier for our loved ones.

As the saying goes, nobody likes to think about what is going to happen to our family and loved ones are going to be provided for when you die but something as simple as having a valid and up to date Will is one of the most important parts of planning for your family’s future.

With the appropriate advice from Canny Legal, the development of an effective Will is something that can be done quickly and easily.  Not to mention that once it’s done it will provide certainty and confidence that your family will be provided for in the future.

THREE THINGS YOU MAY NOW KNOW ABOUT WILLS!

  1. SUPERANNUATION // superannuation death benefits cannot be dealt with directly in a Will. However, depending on the rules of your fund, you may be able to make a sperate Binding Nomination to make sure any death benefit is distributed in accordance with your wishes.
  2. EFFECT OF MARRIAGE OR DIVORCE // in Victoria, marriage has the effect of revoking any previous Wills other than those specifically and expressly made “in contemplation of marriage”. Divorce, on the other hand, does not revoke an existing Will however, unless a contrary intention is shown, any appointment of your former spouse as an executor and any gift/s you may have left them are automatically revoked.
  3. EXECUTION REQUIREMENTS // to be valid a Will needs to be signed by the Will-maker and witnessed by at least two people. Each page also needs to be signed by the Will-maker and the witnesses and everyone needs to sign in each other’s presence.

WHAT ARE THE BENEFITS OF HAVING A WILL?

There are many key benefits of having a Will, including having the power to be able to:

  • Appoint one or more people you know and trust to be the executor of your estate
  • Nominate guardians for any of your children who are under 18
  • Specify exactly where are how your estate gets distributed and to whom
  • Allocate specific gifts to particular people or organisations EG. Charities
  • Make specific directions about your funeral arrangements or the way you would like your body to be treated after death EG. To be buried or cremated

In addition, the administration of your estate will generally be more efficient and less stressful if you have a clearly planned out Will.

WHAT HAPPENS IF I DON’T HAVE A WILL?

In the circumstance that you should pass away without a valid Will:

  • The administration of your estate may be unnecessarily complicated for your surviving family members who may need to work through the courts to have your estate administered
  • The distribution of your estate will be undertaken in line with a legislated formula that may not reflect your wishes

In the event that you have ownership of property, this will be distributed according to the laws of the State or Territory in which you lived at the time of your death.

Similarly, if you have children under the age of 18, they will have a guardian appointed to them by the State and in most cases any such arrangements will not be entirely consisted with your wishes or desires.

“What happens if I die without a Will?” is one of the most common questions we are asked when preparing these documents.  This is usually followed by the question “is it true that the Government gets my money if I die without a Will?”  The short answer is NO, however, the Crown (Government) will receive assets of the Estate IF a person dies without leaving a surviving spouse, partner, child, grandchild, sibling, parent or cousin.

WHAT HAPPENS IF I DON’T HAVE A VALID OR UP TO DATE WILL?

If you already have a Will, then congratulations on being organised!  But have you reviewed it recently?  Unfortunately, if you have a Will which is old, not clearly drafted or incomplete the document may be subject to legal challenges or may not reflect your current circumstances or wishes.

The general rule is to review your Will every three to five years to make sure it still reflects your current wishes.  It is also important to review the document when any of the following events occur:

  • A change in your family EG. Marriage, divorce, children
  • A change in assets EG. You come into a large sum of money, acquire a significant asset or start running your own business
  • A change in the capacity or circumstances of key people EG. A family member needs long-term medical care of special assistance, your executor dies or loses capacity
  • A change in location EG. You move to a different state or country with different inheritance and estate laws
  • A change of heart EG. You want to add or remove a gift to a particular friend or relative, you want to provide a gift to a charity.

WHY IS IT IMPORTANT TO GIVE CONSIDERATION TO THE NEEDS OF FAMILY MEMBERS?

Many of us set out on our journey through life with goals in mind like; working towards our dream career, starting a business, travelling the world, getting married and having children – the list goes on!  In time, we acquire assets like family homes and our estate represents this lifetime of dedication and achievement that once passed on can continue to enrich the lives of our loved ones.

There are different types of Wills and ways of providing for family members and their circumstances.  It is important to consider the responsibilities the Will-maker has to the needs of their family.

For example, a parent who has two children, one who is disabled requiring care and the other wealth in his or her own right.  The Will-maker may choose to devote some or all of the Estate to the child in need, at the expense of the child who is not.

A properly drawn Will allows a higher level of certainty in the control of assets after death; who inherits what assets and how they’re distributed in the best interests of the surviving family.  Canny Legal can advice on the best way to provide for family members, including how to reduce the risk of a family members wasting his or her inheritance away.  Families always have competing needs and siblings can often be rivalrous so any potential challenges to a Will should be considered at this time.

It’s an unfortunate but not unusual situation where a family member believes their parents, partner or spouse have not taken their needs into consideration.  This may lead them to challenge the Estate by making an Application to the Court for an order of proper provision, or alternatively challenging the construction of a Will if there is evidence that the Will-maker was unduly influenced when making the Will.

Will disputes are very emotional and have become a highly litigated area of law.  It is also common for a party to commence litigation in an emotionally distressed state, without having properly considered the specific objectives of the claim and the evidence required to convince a Court that it should make favourable orders

Litigation is expensive, risky and can very quickly drain the value of the Estate.  The best way to reduce the chance of a challenge or limit a claim is to seek proper advice at the time of drafting your Will and ensure that it considered the Will-makers duties and obligations to family members.

Grieving the death of a family member is never easy.  This time is only made harder if it also brings to light unpleasant family disputes that have been looming between family members.  Take the time to speak to your family members and your loved ones and make time to prepare you Will today.

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