Wills

Good Practices for Wills

• The will should not be witnessed by a beneficiary of the will.
• If possible, the same pen should be used to sign the will by the person making the will and by each of the witnesses.
• Once the pages of the will are stapled or bound together, the pages should not be separated or staples removed.
• You should not attach or pin anything to the will. Bulldog clips or other fasteners which may leave indentations, marks, scuffs or tears should not be used on the will.
• Each page of the will should be signed by the maker and the witnesses and dated.

Mistakes in the wording of a will, or the way in which it is signed and witnessed may invalidate all or part of a will.

If a person dies without a valid will, that person’s property is divided and passes to a person’s spouse, partner, children or relatives in proportions fixed by legislation.  Without a valid will it is necessary for the person’s spouse, partner, children or relatives to go through a process which is more complicated and significantly more expensive than if there was a valid will.

Every person’s circumstances are different.  A will is often vitally important to meet your special circumstances, and those of your family, relatives and other beneficiaries.

Special Circumstances which Need Wills

Family Businesses

Special provisions will be needed where the person making the will is the owner of or has a share of a business, particularly if relations or other members of the family are also involved in the business.  Consideration needs to be given as to whether the formation of a special trust or trusts is desirable to deal with the succession of a business, its assets and the running of the business.

Disabled Children

Special provisions and considerations are needed to provide for disabled children and their care.  Certain tax benefits are available for trusts which comply with certain legislation and are set up to provide for the disabled.

Second and Subsequent Marriages or Partnerships

Challenges arise with blended families to ensure that binding steps are taken to ensure the eventual fair distribution of assets to the children of each person.

Assets in both Australia and Overseas

Special provisions will be needed in relation to overseas assets.  Often it is best to have a will in Australia which deals with the Australian assets, and another will done in the country where the overseas assets are which deals with those assets.

If You Make a Will with Us

First Meeting

We will meet with you at our office, or if it may be appropriate, at your residence or other location.  At the first meeting we will discuss the circumstances of you and your family, provide advice to you, and obtain your instructions as to what you wish your will to achieve.

At the first meeting, we will find out from you:-

• Who will be your executors.  If the executors are not related to you, it is helpful for you to be able to provide their full names and addresses.  (See About Executors below).
• Whom you wish to leave your estate to.  If the beneficiaries are not related to you, it is helpful if you are able to provide their full names and addresses.
• Details of any special needs or circumstances of the people you wish to leave your estate to.
• Details of your assets.  The details of your assets do not need to be precise.  It is very helpful however if you can tell us the nature of your assets, for instance what if any land you own and whether solely or jointly, details of bank accounts, shareholdings etc. 
• Whether you have any business assets and what you wish to do with them.
• Whether all of your assets are in Australia, or if some are overseas.

We will provide advice to you as to how to achieve your wishes, whether a family trust should be set up to protect your assets, and how to minimise any tax liabilities.  We will discuss with you what steps can be taken if you are concerned about the possibility of a challenge to your will.

Within a few days, or sooner as may be appropriate, we prepare your will and any other appropriate documents for signature.

Second Meeting

At our second meeting, we will carefully go through your will and any other documents which we have prepared with you.  We advise on the precise wording and effect of the will and documents.  We will discuss and as appropriate confirm the instructions which you provided at the first meeting.

If everything is then in order you will sign your will and any other documents. 

Many people wish that we keep the original will and any other documents in one of the safes at our office without charge.  In these circumstances we provide photocopies to be kept at your home for reference. 

Alternatively, you can take the original will and other documents.  We will retain photocopies of the documents on our file for reference.  In these circumstances we recommend that the original documents be stored in a safe, or a safety deposit box at a bank or other institution.

About Executors

An executor is the person who deals with your estate after you have passed away.  The executor takes control of your assets and ensures that those assets pass to the beneficiaries whom you nominate in your will.

Executors must deal with the estate expeditiously.  Often, if appropriate, the executor will be a beneficiary of the will.