Wills & Estates: The Importance of Having a Will

A Will is one of the most important documents you any person will enter into during the course of your life. Despite the above current statistics show that almost one in two Australians do not have a valid Will. In this article we explore the 7 key reasons why you need a Will.

1. Avoiding Disputes:

A Will is a legally enforceable document which conveys\ your wishes that need to be executed when you pass away. A Will drafted by an experienced legal practitioner will ensure that the assets pertaining to your life’s work will be distributed and managed in accordance with your wishes. Poorly drafted Wills and Wills drafted from using “home-kits” are increasingly becoming the subject of disputes between beneficiaries and other third parties. These Wills have often been put together by the deceased individual without any legal guidance or professional assistance. A poorly drafted Will can expose an individual’s deceased estate to challenges by third parties who feel they were not provided for at all or not adequately provided for in relation to a Will. Litigation stemming from such a dispute is extremely expensive and can lead to a large proportion of the deceased estate being consumed by legal fees. These disputes have the potential to last for years and devastate families in the process.On the other these matters are often completely avoidable if a properly drafted Will is in place.

2. Appointment of Executor/s:

When a Will is drafted for you it will appoint an executor. It is the executor/s duty to oversee the process of distributing your estate in line with your wishes. It is important to ensure that you have the confidence in the executor/s that you appoint to conduct themselves in an ethical manner at all times during the distribution process. It is also important to ensure that at least two executors are appointed. This is to protect the estate in the instance where an executor may pre-decease you and hence not be able to undertake their duty as executor in relation to your estate.

3. Distribution of Deceased Estate Assets:

The assets pertaining to your deceased estate can hold both financial and sentimental value. In view of this you may want specific items to be inherited by a certain family member or friend. As a Will allows you to list individual people and assets there is the opportunity for you to allocate an inheritance to specific individuals and/or organizations. This may include your respective children, children from previous relationships, as well as friends and charities. A properly drafted Will will make these decisions clear and certain.

4. Excluding third parties from your Will:

It is also possible to exclude certain individuals & family members (who you do not want to have access to your assets) in your Will. These excluded individuals are persons that you do not want to have access to your assets after you have passed away. It should however be noted that the law does protect certain people from complete exclusion from a deceased estate. This includes individuals who can claim that they were dependents that you were responsible for and therefore may be excluded from disinheritance. In situations where an individual has been excluded who claims to have a right to a portion of a deceased estate an application can be made pursuant to the Testator’s Family Maintenance Act 1912 (TFM Claim).

5. Limitation of TFM Claims:

TFM claims are limited to the following people: (a) Your surviving spouse or de facto. (b) Your children (including ex-nuptial, adopted and stepchildren); (c) Your parents (if you die without a spouse or children); and (d) A divorced spouse who is receiving or entitled to receive maintenance from you at the date of your death. If your Will involves the prospect of diminished inheritance for any of the people you should ensure that you seek legal advice in relation to this and in relation to the preparation of your Will.

6. Ensuring the Validity of your Will:

l A Will can automatically become invalid if you get a divorce or if it is not signed or witnessed properly. It is also important that you update your Will when there are births, deaths, marriages, and divorces in the family. Further to the above it is recommended that you update your Will every five years and/or when there is a major change to your family. The above reinforces the importance and having an lawyer assist you with the drafting of your Will to ensure it’s validity.

7. If you die Without a Will (intestate):

In the event you die intestate (that is, without a Will) your assets are divided between family members according to the law. This means that effectively you will have not have any say in relation to the distribution of those possessions. In the hands of the State the allocation of your assets may become a lengthy and distressing process for family and friends during a time of grief. Further, if you are separated or divorced from your partner and/or you have children from previous relationships, the allocation of assets can become complicated and some family members may be prioritized over others. Again a valid Will ensures that your assets and/or sentimental effects tend up in the possession and care of the person/s to whom you believe they should be allocated to.

Conclusion:

As is evident from the above it is of paramount importance that you ensure your Will is drafted carefully, so to accord with your wishes and that it is indeed a valid legally enforceable document. At O’Brien Law we have significant experience in dealing with Wills and Estates and would be most happy to assist you in relation to these important documents.

By Tom O’Brien