Wills

The general rule in relation to the making of a will is that a person should create a will as soon as they acquire an asset, or begin a family, that needs protecting. For example, when a person gets married, has a child, or purchases property. However, a will can protect anything in your possession, even sentimental items that may have been passed down through the family, so there is no right or wrong time to make a will – but the sooner the better. A will can always be revoked, and a new one created at a later date to reflect your needs as they change. A will should also be made to cover your liabilities such as debts, mortgages and overdrafts. All of your property, including liabilities, are commonly referred to in a will as your estate.   

Wills are covered by the Wills Act 2007. Whilst you can decide what happens to your estate in your will, the law provides how certain wishes should be stated in a Will, and it must be made in a prescribed manner. If it is not stated clearly in accordance with the law, or if it is too vague then the will may be made invalid.

If you have entered into a de facto relationship, marriage, civil union, or have children, then you should make adequate provisions within your will for these dependents. If you do not make a provision to provide for dependents, they may contest the will under the Property (Relationships) Act 1976.

If you wish to pass specific possessions to a certain person, you should include a provision in your will for this. It is common for a provision which states the executor is to observe any list that is left by you which states who is to receive what item of property, such as rings, vehicles or a special collection.   

Should you have dependent children, you may want to state in your will who is to be appointed testamentary guardian(s) of your children. A testamentary guardian does not necessarily take over day-to-day care of the children, however they do take on responsibility for making key decisions in relation to their upbringing. This provision is important, particularly if both parents were to die together, or if you are a sole parent or guardian. 

You should include in your will at least one executor (male), or executrix (female). The executor is responsible for seeing that your wishes, as expressed in your will, are administered. An executor can also be named as a beneficiary within your will if you choose. Administering a will can involve a lot of work, thus you may wish to pay them for their work, even if you do not wish to give them a share in your residual estate (what is left after paying debts or funeral expenses) or any other personal item(s). 

A will can be challenged as to its validity for a number of reasons. These include that it was not correctly witnessed or signed, errors contained within the will, the will-maker lacked mental capacity to understand and provide instruction as to their wishes or that there was undue influence on the will-maker at the time of making the will from a beneficiary under the will.

A will does not come into force the day it is signed; it only takes effect from the date of your death. The person who stands to benefit the most from the estate then needs to apply to the High Court for a grant of probate. If they do not want to do it then certain others can be appointed such as the executor, a family member, or a lawyer.    

There are many things to consider when making a will. Whilst it best to relook at your will every five years, or when your circumstances change, it is always best to consult with a lawyer before making big decisions that will have an impact yours, and your families’ lives.