Wills and Estates – Woodgate Lawyers

What is a ‘will'? What is an ‘estate'?

A will is a document written by an individual which states his or her final wishes about how all personal belongings, property and other assets - ‘the estate' – are to be disposed of, after he or she has died. In it, the author – or ‘testator' - appoints someone to be the ‘Executor' who will carry out those wishes.

A will is an important but complex legal document. It needs to satisfy numerous legal requirements before it can be considered a valid document. Grieving the death of a loved one can be a very tumultuous period and a will can be challenged by those who feel they have not been given enough consideration in the will. So, it is important that the will be properly written.

Depending on the value of the assets in the estate – the bank accounts, for example – the Executor may need to obtain a Grant of Probate from the Supreme Court in order to access those assets and carry out the wishes stated in the will. A solicitor can tell you if this will be necessary.

Do I need a will?

Everyone needs a will. The thought of writing one can be daunting and unpleasant. It may involve difficult decisions about who will benefit from the will (the ‘beneficiaries') and who will not.

However, when a person dies without a will, the law steps in to administer the estate according to its own rules. It appoints someone to be the ‘Administrator' of the estate. Instead of the testator's belongings and assets being distributed among loved ones according to his or her own wishes, everything is distributed according to a list of people who the law has decided are the legitimate beneficiaries.

The law's list gives priority to the immediate family. Generally, the first to inherit will be the surviving married or de facto spouse and any children. If there are none, the nearest surviving relatives will inherit. If there are none, the government will inherit the estate.

Sometimes, this list of people may mirror your wishes but it may exclude other family members and friends who you cared about. Regardless of whether there are family disputes, it may distribute the estate to family members against the your wishes.

Most importantly, it may mean that people you cared about, in life, will be left confused and unrecognised after your death, simply because they do not fit within the law's defined list of appropriate beneficiaries.

There are variations to this list, such as allowing for other forms of domestic relationship and dependents and the process can be a long and complex one. There may also be more than one spouse if both married and de facto relationships existed. The best way to prevent the frustration and confusion that loved ones may endure is to take the time to write a will.

Do I need help to write a will?

It is possible to write your own will but it is probably better if you do not. It is such an important document and an experienced solicitor can make it legally ‘watertight'. A solicitor will ensure that the will can stand-up to legal scrutiny and withstand any challenge. A legal professional can help you identify every asset and belonging and will be aware of the financial and legal considerations that may affect them. Finally, a solicitor can also act as the Executor of your will and carry out your wishes as quickly and effectively as possible.

Can a will be changed?

A will can be changed at any time and should be adjusted whenever there is a major personal or financial development in your life.

This can be done by writing and attaching a ‘codicil' to the will, outlining the change, or it may require a more thorough re-writing of the will. This depends on the magnitude of the change and you are strongly advised to engage a solicitor to advise you on the best way to do this. It need not be a long a complex process, but it must be correctly done.

Can a will be disputed?

Even the most well-drafted will can be disputed or challenged by any of the following people:

spouse/de facto spouse, or former spouse;
child;
domestic partner (in a non-marriage, non-de facto personal relationship with the testator in which domestic support and personal care was provided);
dependent grandchild
any dependent person who was part of the testator's household.

If they feel they were not adequately provided for, or believe the testaotr was mentally incapable of writing the will or was tricked, or that the will itself was old or had been interfered with, they can challenge the will.

It may seem that even the best will is vulnerable and may cause unnecessary grief and frustration among those left behind. However, not writing one at all will only expose them to the inflexible and insensitive rules that have been laid down by the law for those times when there is no will.

Your wishes will be clearly stated in a will and, with the help of a solicitor, they will be able to withstand any dispute that may arise.

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The information you obtain at this site is not, nor is it intended to be, legal advice.
You should consult a lawyer for individual advice regarding your own situation.