A Will is a document that states how you would like your assets to be distributed when you die. It also identifies people or organisations you would like to be responsible for carrying out your wishes.
It is a legal document, and to be valid, there are a number of processes that must be followed.
According to Section 7 of the Wills Act 1997 (Vic), a Will is not valid unless:
- It is in writing and signed by the Testator (Will-maker) or by some other person in the presence of and at the direction of the Testator; and
- The signature is made with the Testator’s intention of executing a Will, whether or not the signature appears at the foot of the Will; and
- The signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time; and
- At least two of the witnesses attest and sign the Will in the presence of the Testator but not necessarily in the presence of each other.
You must also appoint an Executor. An Executor is someone who is going to manage your estate – i.e. collect your assets, pay your liabilities and distribute your estate to your beneficiaries in accordance with your Will.
Why use a lawyer to draw a Will instead of a Will Kit you can buy from the Post Office?
To save money, many people choose to write their own Will. This may do more harm to your beneficiaries than help.
Here’s why you should spend the money:
- You may be sure that your Will is valid;
- You may minimise the risk of litigation if a person makes a claim against your estate;
- You may be asked to put measures in place for scenarios which you have not thought of before but which your lawyer has picked up;
- You may be advised how to make your bequests in a way that helps a beneficiary, not harms them.
Don’t forget: It is a part of Hassall’s Litigation Services to minimise the risk of litigation!
Case Study
A client wanted to leave her property to her son who was living in it with her. However, her son was receiving Centrelink benefits. If he inherited the house, he would not be entitled to receive those benefits.
If the son did not inherit the property outright upon his mother’s death and instead received a life interest for him to occupy the property i.e. he had the right to live in the property without owning it, he would still be entitled to receive his benefits. This enabled him to maintain his Centrelink benefits and live rent-free in the property.
In this scenario, the Executor would manage the household expenses such as bills which are paid by the Estate. The house remains in the name of the Estate.
Excluding people
If you want to exclude a person from benefiting from your Estate, you must state this in your Will and include the reason(s) why. This helps with showing that you intended to exclude a person from your Will and it was not merely an oversight.
Final check
Are you sure your Will is created such that your beneficiaries will be taken care of and only the people you want to benefit from your Estate will? We can remove the doubt – speak to us.
This article provides information that is general in nature and is not a substitute for legal advice.