What is a Last Will and Testament?
Your Last Will and Testament – known more simply as your legal Will – is a legal declaration by which a “testator” (will-maker) enforces their wishes to distribute their assets upon death. Under a Last Will and Testament, an executor is appointed by the will-maker who looks after the estate of the deceased. It’s their job to carry out the directions specified in the Will devised during the estate planning process.
Why is a Last Will and Testament important?
In the event of a person’s death, the properties including tangible and intangible assets, are distributed among the beneficiaries, keeping in mind the intentions outlined in the Last Will and Testament 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 a Last Will and Testament is to ensure that the property of the deceased is distributed as per the intention and wish of the deceased, avoiding risk of fraud and in order to reduce mismanagement of their financial affairs.
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 Last Will and Testament can be challenged. When contesting a Will 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 an 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 benefited under the said Last Will and Testament.
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 Last Will and Testament. 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 and witnessed. This means the testator must sign their written Will in the 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 Last Will and Testament, 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. 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. However, it should be someone you believe will act in the best interests of your beneficiaries.
Republished or Revived Will
When amendments or republication is made on a Last Will and Testament, 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 the 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;
- When any addition is made and there is an intention to republish the Will; and
- When a revoked Will is subsequently revived.
Informal Last Will and Testament
To determine the validity of the Last Will and Testament, 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 unsure of the validity of your Will or require assistance with the proper administration of estates, contact the Wills and estate lawyers at Owen Hodge today for legal advice.
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Frequently asked questions
Among other things, you should not put joint accounts or jointly-owned property, life insurance or anything you don’t own in your Will. If you are unsure about what should and should not be in your Will, contact a Wills and estate lawyer.
Anyone who might profit from the Will in some way cannot witness a Will, which includes family members and surviving spouses.
There are several steps involved in writing your Will and it can be complicated. That is why we recommend speaking to a wills and estate planning lawyer first.
- It has not been properly signed in the presence of witnesses.
- At the time the Will was made, the Will-maker did not have the capacity to make the Will (i.e. was not of sound mind).
- The Will was created under undue influence.
- The Will was a part of a fraud.
We recommend speaking to a Wills and estate lawyer to confirm which documents you need, but in general, the following should be included in your estate planning:
- Power of Attorney
- Enduring Guardianship
- An Advanced Care Directive
- Testamentary Trust
Your Will should be kept in a safe place where it’s easily accessible by the executor of your Will, such as:
- A safe place in your home
- With your executor
- With your lawyer
- In a secure deposit box