B Hayward and Co

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  • Technical requirements of a will

    • must be in writing
    • signed by person making will (called the testator) with the apparent intention of approving the will (usually at the foot of each page)
    • if testator is weak, his hand may be assisted to sign
    • signing by another person in the name of the testator is permitted as long as testator present and directs that it be signed. This allows a person who is physically disabled to make a will. This other person may also then be a witness to the will.
    • if testator unable to read, may be read over to him in presence of witnesses.
    • testator’s signature must be witnessed by (at least) 2 persons who then sign themselves – all in the presence of each other.
    • all should use the same pen as testator to avoid suggestions that they signed at different times.
    • witnesses should print their name and address under signature so they can be found if necessary when the testator dies. They would normally only be needed if there is some doubt that the will was signed properly.
    • witnesses can be any person old enough to give evidence in a court – not necessary to have JP or similar).
    • witnesses cannot receive a benefit under the will nor can their spouse (if witness or spouse named in will, the will is still valid but they or their spouse can’t get the benefit).

  • Can I make my own will without a solicitor?

    • Yes. Your will is valid whether made with or without the assistance of a solicitor or Trustee, as long as it meets the technical requirements. (see below).
    • The usual problem with homemade wills is that they are typically made as if you are about to die but when you do die (hopefully years later) everything has changed:

      A home made will might say “I leave my house at Hurstville and my Commonwealth Bank account to my wife Mabel, any other money to my sister and my car to my son”. This might be fine at the time but what if you have sold the house at Hurstville (perhaps it was sold by your Power of Attorney because you are in a nursing home), the Commonwealth Bank is now called the Murdoch Bank and there is no car ? – the effect of the will, will be completely different. The money from the house will go to your sister and your wife and son will get nothing.

    • An experienced solicitor would be less specific with assets and have thought of the possibility that the house might be sold and turned into cash and that the bank details may change.

  • When you don’t have a will, who gets it?

    • This order was changed substantially by a law that took effect in relation to anyone who died after 1st March 2010. One of the substantial changes is that the law now recognises the possibility of leaving multiple spouses (ie. One legal and one or more de-facto spouse).
    • If deceased left a spouse and either no children or only children of that spouse and the deceased, the whole estate goes to the spouse;
    • If there is more than one spouse but no children (say a legal spouse and also one or more de-facto spouse(s)) then they share the estate equally;
    • If there is a spouse and children of another relationship, the spouse (or spouses) share the first $350,000 of the estate and half the balance. The children get the rest.
    • If no surviving spouse but children then such children get the whole estate equally. If any children have died before the deceased but have left children of their own ( grandchildren) then the share passes down the line ie. to their children and if any of them have died, to their children etc.
    • If no surviving children, grandchildren or spouse, then it passes to parents.
    • If no parents then to brothers and sisters. Like children, if any of them have passed away before the deceased, their children take their share (nieces and nephews).
    • If no brothers and sisters, then to grandparents.
    • If no grandparents then to uncles and aunts and like brothers and sisters, their children (cousins) get the parents share if the parent died before the deceased.
    • If no uncles and aunts (or children of any deceased uncle or aunt) then it goes to the state government.

  • What happens if I do not make a will – does it all go to the government ?

    • When you die without a will, the legal term is “to die intestate.” The estate only goes to the Government if you have no relatives of the required categories. In the next item, I have set out the list of relatives in order. If there are no relatives in one group then it drops to the next group and so on. If there are relatives in a higher group then those on the lower group get nothing. The word spouse means either legal spouse or de facto spouse (see next).
    • if you don’t have a will the persons entitled have to be established by documentary evidence such as birth, death and marriage certificates. These can sometimes be difficult to obtain if the events took place overseas or the details are unknown.
    • in your will you name the Executor. If you have no will the person who deals with your assets may not be your choice. There may be a dispute amongst beneficiaries as to who should administer the estate.
    • if any beneficiaries are under 18, the court will require the administrator obtain person guarantees (sureties) from two other persons. Those persons then become liable if the funds ‘disappear’. There may not be many people who are prepared to give such a guarantee.

  • Why do I need a will ?

    • Your will is your chance to say what you want to have done with your property when you die.
    • It is a document that only comes alive when you die.
    • It is only the last will that operates and there is no limit to how many wills you make.
    • A will can always be revoked (cancelled) or changed at any time as long as you have capacity.
    • Your will can also contain your wishes for your funeral and disposal of your body.