Will is a legal declaration by which a testator enforces the wishes to distribute the assets upon death. Under a Will, an executor is appointed by the maker who looks after the estate of the deceased or carries out the directions specified in the Will.
In the event of the death of a person, the properties including tangible and intangible assets are distributed among the beneficiaries keeping in mind the testamentary intention of the deceased person. The Law of Succession in Australia deals with the distribution of property from a deceased’s estate.
The primary objective of laws pertaining to Will is to ensure that the property of the deceased is distributed as per the intention and wish of the deceased to avoid risk of fraud and in order to reduce mismanagement.
Capacity to Make a Will & Undue Influence
You are eligible to make a Will if you are above 18 years of age (apart from the exceptions) and of sound mind.
Undue influence is one of the valid grounds on the basis of which a Will can be challenged. To validate a challenge on the grounds of undue influence it has to be established that the person making the Will has not acted voluntarily with true intentions and that the element of coercion was involved.
A Will can be challenged on the basis of fraud on a number of grounds. The testator or the person alleging that a fraud has been committed must show that:
- A material fact has been intentionally misrepresented;
- The testator was deceived in making his/her Will by such misrepresentation;
- The testator relied on such misrepresentation; and
- As a result of such misrepresentation, the person who committed such fraudulence was benefited under the said Will.
Requirement for the Will to be in Writing and Signed
A Will should be in writing in order to meet the requirements of a valid enforceable Will. It does not mean that the testator has to write physically his/her own Will. The term writing is defined as representing or reproducing words in a visible form.
Moreover, there are no restrictions on the language in which a Will should be written.
A Will should be signed by the testator in presence of 2 adult witnesses in order to be a ‘valid enforceable Will’. In certain circumstances, the testator can also direct any other person to sign the Will on behalf and in presence of the testator, as long as the said person acknowledges the same.
Power of Appointments and Testamentary Trusts
When a testator bestows powers on any person to appoint beneficiaries under the Will, such powers are known as Power of Appointments.
While making a Will if you are thinking of providing a specific asset and/or a designated portion of your estate and/or the entire remaining balance of your estate to your loved ones after your death, you may consider using a Testamentary Trust for the same.
You can also create multiple Testamentary Trusts under one Will.
Testamentary Trusts are created under a Will and therefore, it comes into effect only after the death of the testator or the person who made the Will.
The primary objective of a Testamentary Trust is to hold and manage all or some of the assets and distribute it to the beneficiaries as per the terms outlined in the Will. To manage the assets of the Trust, a trustee is nominated in the Will. You can ideally choose anyone as a trustee including executors of your Will or your spouse but it should be someone whom you believe and have enough confidence that such person will act in the best interests of your beneficiaries.
Republished or Revived Will
When amendments or republication is made on a Will, it is known as Republishing a Will. From the date of amendment or republication made on the Will, the Republished Will comes into effect.
In case when a previously revoked Will is restored, it is known as Revival of a Will.
A Will can be republished in the following instances when:
- It is re-executed;
- Any addition is made and there is an intention to republish the Will; and
- A revoked Will is subsequently revived.
To determine the validity of the Will, the Court usually checks whether it sets out the testamentary intention of the deceased.
In many instances it has been found that the testator or the witnesses have forgotten to sign or signed the wrong document or else failed to comply with the law relating to proper execution of a Will.
If you are not sure with the validity of your Will and contemplating to seek assistance in this regard, contact our team of experts at Owen Hodge Lawyers.