Wills

Planning for the future is important. Often, it never feels like a good time to think about making a will. Making sure that your affairs are in order is a sensible thing to do. It’s hard to think about it, but some careful thinking and planning will go a long way to ensuring your wishes are followed.

What is a will and why do I need one?

A will is a formal document that expresses what you’ve decided to have happen with your property when you die. Not everyone makes or even needs to make a will. If you have family or other people dependant on you, it is a good idea to think about making a will so that your family or dependants are taken care of. Also, you might just want someone close to have a special gift or keepsake. Making a will lets you express what you want to happen to your property and acknowledges your family and friends.

If you have children under 18, you might want to make a will in part to provide for their care and support, like their education (refer to discussion below).

What if I die without making a will?

If you don’t make a will then you will die ‘intestate’. To die intestate means that you die without making a will. If you die without making a will the law will distribute your property.

Should you die intestate, your property will be distributed according to a legal formula that distributes your property among family members. If, for example, you have a spouse and children, a formula is used to divide your property between them. This might not reflect your wishes.

In rare circumstances it is possible for the State Government to end up with your property, if you don’t have any living close relatives required by the law for an intestate distribution.

What if my spouse and I are in a de facto relationship, or I have a same-sex partner?

Under the law, a ‘spouse’ is defined to include:

		Your de facto spouse; and
		Persons of the same sex living in a de facto relationship.

If you die without making a will the law says that your de facto spouse, or same-sex partner are in the same position as a ‘spouse’.

Please note that as this issue may vary according to your own particular circumstances, it is advisable to seek legal advice.

Can I make my will myself? Or, do I need a lawyer?

Yes, you can make a will yourself. You have probably seen ‘will forms’ in newsagents and the like. But you should be very careful if doing your own will. A ‘do-it-yourself’ will might well be appropriate to your circumstances. However, you must remember that a will must be:

Properly written;   Properly signed; and   Properly witnessed in your presence.

If your will lacks any of these things it may well mean you are intestate and this could cause problems and expense for those left behind.

Overall, we strongly suggest that you seek legal advice. A lawyer will be able to assist you in making sure your wishes are properly expressed, and give advice you might need about any issues that arise in your particular circumstances. A lawyer must let you know in advance how much it will cost for advice and will drafting. Most simple wills are relatively straightforward and inexpensive.

Who should be my executor?

Your executor is the person you appoint to look after things for you when you die. They have an important role in distributing the property under your will and you should think very carefully about who you would like to appoint. Some things to think about include:

		Your executor should be someone you know and trust;
		Your executor should be younger than you, (though this doesn’t always matter);
		You should discuss the appointment with the person you want to make executor to ensure they understand and agree to it; and
		If your will is complicated, you might think about appointing a friend or relative who is organised, or you might want to appoint a trustee company because of its expertise.

If you want to appoint an individual as your executor, it is also a good idea to appoint an alternate, in case anything happens to them, or they can’t act.

If you wish to appoint the Public Trustee as your executor, certain fees and charges will be applied according to the value of your assets. See the Public Trustee at www.pt.nsw.gov.au

What if I want to give extra directions to my executor?

After making a will some people ask whether it is a good idea to vary their will or to write further directions to their executor. It is possible to draft a document called a ‘codicil’ which can ‘add to’ your will. You should seek legal advice before attempting to add to your will, as you may unintentionally revoke your original will.

What can I put in my will?

There are a number of different things you can put in your will. You can leave gifts of money and assets to individuals or groups of people, or leave money to charitable organisations. For example, you can:

		Make a specific gift of any property you have, like your house or car;
		Leave a gift of money that you may have;
		Appoint someone to care for children who are not yet 18 to provide for their education; and
		Request what you would like to happen at your funeral.

What about my children?

If you have young children, you can use your will to name the person or persons you wish to appoint as their guardian until they reach 18 years. It may also be the case that you wish to set up a trust for children. Please refer to the section immediately below.

What if I want to set up a trust?

When discussing your circumstances with your lawyer, the issue of whether to set up a trust may arise.

A trust can be set up in a will, or by another document. A trust may be appropriate to your particular circumstances so you should discuss this fully with your lawyer.

What about directions for my funeral?

Some people like to put a clause in their will about their funeral. Such a clause is only a request and cannot compel anyone to do anything.

It is better to talk to your close family and friends about this issue, so they understand what you would like to have happen about your funeral, and so you can be sure your wishes will be taken into account.

What if I want to change my will?

In life things often change. If you already have a will it’s very important that you think about whether it still reflects your wishes. For example, if you make a will when you are single and then marry, you should make a new will. If you make a will when you are married and later get divorced, you should also make a new will.

It’s very important that you don’t write on your will or try to delete parts of it, or do anything at all to the will document. Many problems arise where people have tried on their own to alter their will in these ways. If you already have a will and you want to make changes to it you should seek legal advice.

Particular circumstances

Marriage

If you made your will when you were single, when you marry your will is cancelled or ‘revoked’, unless it was made with that particular marriage in mind, or stated in general terms that it was made ‘in contemplation of marriage’. Because of the problems this may cause, we suggest that you make a new will once you are married or re-married.

Divorce

Let’s say when married, you made a will appointing your spouse as executor and giving them a gift. When you divorce any appointment or gift to them will be cancelled or ‘revoked’. Once again, if your circumstances change through divorce, you should make a new will.

Superannuation benefits

Superannuation is generally covered by the Commonwealth Superannuation Industry (Supervision) Act 1993 (except for some state and commonwealth public servants). Under the Act, the superannuation fund trustee must pay benefits to a ‘dependant’ or to the deceased’s estate. In the event of death, superannuation policies usually provide that your death benefits are payable to your ‘dependants’. The Act’s definition of ‘dependant’ now includes any person with whom the member has an ‘interdependency relationship’. Same-sex couples can only be treated as dependants if their relationship satisfies the Act’s definition of an ‘interdependent relationship’.

Please note that, unless you belong to a fund that allows binding nominations, the superannuation trustee is not legally bound to pay the death benefit to a nominated person – even if that person qualifies as a ‘dependant’ under the fund. In this case, it may be appropriate to address the issue of your superannuation beneficiary in your will.

As this is an extremely complex area of the law, should you have further questions we strongly suggest you seek legal advice.

Debts

Your debts are always paid out of your estate. Most wills include a standard clause dealing with this. In preparing your will it is important that you talk to your lawyer about your current level of indebtedness.

Mortgage of land

If you are the owner of land and want to leave the land to a person in your will, you need to consider whether there are any outstanding mortgages on the land.

If you wish to give the land free of the mortgage, the law requires you use a certain form of words in your will. We suggest you seek legal advice about drafting a clause to this effect.

Executor’s commission

Your executor may apply to the court for a payment from your estate for ‘pains and trouble’ in administering the estate according to your wishes. Please note that this issue may become complicated where you actually leave a gift to your executor.

What is ‘Family Provision’?

Generally, you are totally free to leave your property to whomever you like. However, in making your will you should make sure that you make ‘proper provision’ for your spouse, children  (including children from another relationship), and certain other people who might be eligible to make a claim on your estate. If you don’t, they could apply to the court under the Family Provision Act (NSW) 1982 to obtain a provision according to their needs. We suggest you seek legal advice for a more detailed explanation about how Family Provision might affect your will.

Can I exclude people in my will?

It is possible to attempt to exclude certain people from obtaining a benefit under your will. However, as noted above, you should talk with your lawyer about ‘Family Provision’, as well as other persons with whom you have or had a close relationship.

What happens now?

Once your will is drafted and executed there are a number of things that can happen:

		Your lawyer may retain your original will for safekeeping;
		You may be given the original to keep in a safe place yourself. If you do this, your lawyer will keep a copy of it on your file.

You should always tell your executor where to find your will. The Registry of Births, Deaths and Marriages have a service called the ‘Wills Register’. They do not keep the will for you, but you can fill out a form that records where you have kept your will. There is no cost involved, but there is a minimal search cost of $31.00 if the Register needs to be searched. See the Registry of Births, Deaths and Marriages at www.bdm.nsw.gov.au to get the latest information about the Wills Registry.

Useful Contacts

		To locate your local Community Legal Centre - www.nswclc.org.au
		LawAccess – www.lawaccess.nsw.gov.au
		Law Society of NSW – www.lawsociety.com.au

Acknowledgements: The Law Handbook, 9th edition (Redfern Legal Centre Publishing); Rest Assured, 4th edition (Redfern Legal Centre Publishing).

Disclaimer: The information contained in this fact sheet is only intended as a guide to the law and should not be used as a substitute for legal advice. If you have any further questions we strongly suggest you seek legal advice.

Note: This information applies to people who live in, or are affected by, the law as it applies in the State of New South Wales, Australia.

The information contained in this factsheet is current as at 30th June 2005.