will

WILLS

 

Commonly used terms

• Testator (male)/Testatrix (female): a Will maker.

 

• Executor (male)/Executrix (female): a person or institution appointed by a testator/ix to carry out the terms of their Will.

 

• Administrator (male)/ Administratrix (female): a person or institution appointed by the Court to carry out the administration of an estate in accordance with intestacy laws.

What is a Will?

A Will is a legal document that sets out the wishes of a person for the distribution of their assets upon their death. In order to ensure that assets are disposed of in a particular way upon death, it is imperative to have a Will. In the event that a person dies without a valid Will, then their estate is divided according to a statutory formula under Part I, Division 6 of the Administration & Probate Act 1958 (Vic). This is commonly referred to as dying ‘intestate’.

 

The law of Wills is complex and difficulties may arise if a Will has been drafted incorrectly. Generally, the Will is taken at face value and literally interpreted. It is therefore highly advisable to consult a solicitor to discuss your wishes.

Who can make a Will?

 

Any person over the age of 18 years may make a Will. A Willmaker must have the mental capacity to make a Will. Therefore, a Willmaker must know and understand the nature of their Will and its legal effect. They must also know and understand what assets they have and who they wish to leave them to.

 

A person can apply to the Court on behalf of a minor or mentally incapacitated person to have a Will made for them. These are known as statutory Wills under sections 21-28 of the Wills Act 1997 (Vic).

 

 

 

Formalities of a Will

 

In order for a Will to be considered ‘valid’, the following formalities must be adhered to in accordance with the Wills Act 1997:

 

1. The Will must be in writing – any means of representing or reproducing words in visible form;

 

2. The Will must be signed and dated;

 

3. The signature of the Willmaker must be witnessed by two independent adult witnesses. That is, they should not be a beneficiary under the Will or a person who is deemed an interested party to the Will. The witnesses must sign after the Willmaker has executed the Will and in the presence of the Willmaker; and

 

4. The Willmaker and each witness to the Will should sign each page of the Will. It is highly advisable for all signatures to be signed using the same pen.

 

 

 

What assets can I leave under a Will?

 

A Willmaker can gift their real and personal property under their Will. Real property will pass to a beneficiary, provided that it is not jointly owned. If it is jointly owned, then by right of survivorship, the surviving proprietor will automatically inherit and therefore will not form part of a Will.

 

Personal property which can be bequeathed includes but is not limited to shares, bonds, cash, savings and chattels.

 

Superannuation and assets held under a Trust will not form part of a Will either. However, depending on your superannuation fund, you may have an option to nominate a beneficiary to receive these funds upon your death.

 

 

 

Changing a Will

 

The following circumstances may warrant a Will being changed:

 

• The Will being outdated;
• Purchasing new assets;
• Selling, losing or giving away assets;
• Beneficiaries in the original Will may have died;
• Potential beneficiaries may come into consideration;
• Marriage; and
• Divorce.

 

A Will remains in force from the date of signing it, unless it is changed partially or wholly. The Will cannot be altered unless the alteration is signed by the Willmaker and two witnesses, like the rest of the Will. The alterations can be handwritten on the original Will. Alternatively, a formal codicil can also be executed to make an alteration. However, it is always preferable to execute a new Will incorporating any amendments so as to avoid any complications in the future.

 

 

 

Revocation of a Will

 

When a Willmaker revokes a Will, they are cancelling its legal effect. The following are ways in which a Will can be revoked:

 

• By getting married. A Will made at any time before a marriage is considered automatically revoked;
• By making a new Will or codicil; and
• By the Willmaker destroying the Will.

 

If you are thinking about drafting a Will and would like to obtain further information, please do not hesitate to contact our office.

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