Making a Will

A Will is a legal document that specifies who is to receive your assets when you die. It may also appoint a guardian for any children you have who are under 18 years of age. It operates only upon death.

If you do not have a Will, your assets will be distributed according to the formula set out in the law and you will not get to choose who is responsible for managing your assets after your death or to whom your assets are distributed. This may cause anguish among family and friends at an already emotional time.

When you make a Will you also choose the person who is responsible for looking after and distributing your assets after death. This person is known as your executor. You should choose your executor carefully to ensure they understand the responsibilities for distributing your assets and understand the needs and wishes of your family.

Many people name just one or two executors in their Will, but technically they can name as many as they prefer. To ensure the process runs smoothly, we recommend naming a solicitor as one of the executors. If you have been named as the only executor, you should also consult an estate planning lawyer in Adelaide. Administering an estate is complicated, and as an executor you may be liable if you get it wrong.

1. Be at least 18 years old. A minor may make a Will if they are or have been married. A minor that is going to get married may make a Will, but the Will is only valid once they are married. Alternatively, a minor may ask the Supreme Court of South Australia for permission to make a Will. This will only be granted if the minor understands what a Will is, its effect, and whether the Will carries out a the minor’s wishes.
2. It must be in writing and signed by you or by someone in your presence and at your direction.
3. You must sign the Will in the presence of two witnesses. Each witness must sign the will in your presence. We do not recommend using beneficiaries as witnesses as this may used to infer the will was signed under duress. Your Will may also be considered invalid if one of your witnesses is considered to be incompetent. This may occur if they are under the influence of alcohol or drugs, suffer from an intellectual disability or dementia.
4. Importantly, you must have testamentary capacity. This means capacity to make a Will and includes being able to communicate what your intention is and who will receive your property. If you lack capacity, someone may apply to the Supreme Court for you to request an order that a Will be made for you.

An executor/trustee is the person who you want to appoint now, who will upon your death carry out your wishes and directions as set out in your Will. An executor/trustee is responsible for the administration of your Estate within the terms of your Will and the relevant laws until the final distribution of your assets is made to your beneficiaries. From the time that you pass away until that final distribution, your executor controls all of your assets.

Therefore, the person you choose should be someone:

• You can trust (or is professionally bound to act in your interest, such as your lawyer);
• Is honest, fair and organised;
• Has (or knows how to obtain) knowledge of your financial affairs; and
• Has the skill to deal with financial matters.

Most people also nominate an alternative person to be their executor/trustee in case the first named person(s) is/are unable or unwilling to act as executor (commonly called the substitute executor/trustee). We recommend that you nominate a substitute executor/trustee. If you do not have a substitute executor/trustee, the law will determine the order of the persons who could be appointed as administrator of your estate and sometimes that order of priority would not be in accordance with your wishes.

We recommend keeping your Will as simple as possible by dealing with your assets as a whole.

This has the following advantages:

• Your Will can remain relevant and effective, even if your circumstances change;
• It allows you to buy and sell assets without having to amend your Will;
• It allows you to have more children, without having to amend your Will; and
• Your Will will be simpler to understand by your family.

Whilst there are many advantages, there are naturally some disadvantages. These include:

• Items of significance may not go to the person who you wish; and
• If not drafted properly, there may be some confusion as to what forms “the whole of your estate”.

Our Standard Will Package provides for your estate to be distributed as a whole in the following manner:

• To your spouse/partner;
• In the event that your spouse/partner passes away before you, to your children in equal shares;
• If one of your children passes away and leaves children (i.e. your grandchildren), then your child’s share would be divided equally amongst their child/children.
• If you do not have a surviving spouse, partner, children, you may nominate who your estate is to be distributed to and in what proportion.

Some people like to give specific items to certain people. There are a number of difficulties that can arise in gifting specific items. These difficulties include:

• The specific item to be gifted must be described in the Will with sufficient precision;
• You may not be the legal owner of the specific item (for example, it may be held in a trust), and therefore, not capable of gifting something that is not yours; and
• The specific item may no longer belong to you at the time of your death.

Any of the above 3 scenarios may create uncertainty in your Will and create the possibility of your intended beneficiary with little or no share in your estate. This may give rise to a potential challenge to the validity of your Will.

The decision is entirely yours to make.

If you wish to leave specific items to particular people in your Will, this will incur an additional charge as this is outside our Standard Will package. Our solicitor will talk to you before commencing any work on drafting those provisions as to what the likely cost will be for them. We will not draft those clauses unless you are happy for us to do so.

If you pass away before making a will you have died “intestate”. Instead of having a clear roadmap in place for the distribution of your assets, the laws of intestacy take over and determine how your property is distributed. This may result in family hardship and distributions you did not desire. Therefore the importance of making a will cannot be understated.

If you do not plan ahead, your property may pass to someone who should not have it. Your family will then have to invest time and money to contest this, and may not succeed. A bit of forward planning can ensure your family is able to celebrate your life instead of being dragged through the Court system to finalize your affairs.

In order to provide you with a seamless experience, your Adelaide estate planning lawyer will ask you (the testator) for information about:

• Personal details
• Information about your financial position
• Family details including current partners
• Whether you are in a legal or de facto relationship
• Your previous relationships and their financial outcome
• Your children from previous and current relationships
• Other persons who you wish to benefit, or who you wish to exclude from your will

Some people prefer to express their wish to their executor/trustee as to how they would like to be buried, cremated and/or if their body can be used for scientific purposes or organ donation.

Should you choose to ask us to keep your Will for you, it will be stored in our off-site Deeds safe – a secure and fireproof room. This service is free of charge to you.

If you desire to keep your own Will, it should be kept in a safe place where it cannot be damaged or tampered with. It should never be written on, stapled, held together by a paper clip, or marked in any way.

It is recommended to either give a copy to your Executor, or let your Executor know where you have placed the original Will. This minimises any difficulties arising in locating the Will in the event of an untimely death.

We recommend having your Will reviewed upon any major life event (such as getting married, the birth of a child, or a separation) – or otherwise once every 5 years.

Call us on (08) 7001 6135 if you need assistance with the preparation of a Will, or the review of an existing Will.