What is the Purpose Having a Will?
A will is a legal document which states what you wish to happen with your assets (estate) once you pass away. Those nominated to receive your estate are known as the beneficiaries. It will also indicate who you want to administer your estate once you are no longer here (executor/trustee). Your will may also:
Name a guardian/s for your children;
Establish a trust to provide for your children or a beneficiary with a disability;
Preserve your assets; and
Give money to a charity and/or philanthropic organisation.
Why You Should Have a Will?
It is important to plan for the future by having a will drafted. A valid will is the most effective measure to be certain your estate goes to family, friends or a charity you nominate once you pass away.
Having a valid and current will can assist in:
Minimising the stress for your family and friends;
Reduce the costs to administer your estate; and
Limit the likelihood of disputes about your will.
What are the Issues of Not Having a Will?
If you pass away without a valid will in place, the laws of intestacy will apply. The Queensland laws of intestacy are detailed in Part 3 of the Succession Act 1981 (Qld) which outlines the rules for distributing your assets.
Without a valid will, the following issues could occur:
Your estate may not be distributed to your beneficiaries in accordance with your wishes;
If you do not have any relatives then your assets may be given to the state government;
Conflicts may arise between beneficiaries of your estate; and
It may take more time and money to finalise the administration of your estate which can reduce the value.
Who Should Have a Will?
Anyone over the age of 18 years old who has capacity (is of sound mind, memory and understanding) to make a will should do so. It does not matter how small your estate may be, it is still important to have a valid will.
How Do You Make a Valid Will?
For a will to be valid it must be in writing. Writing is defined to include any way of representing or reproducing words in a visible form. Ideally, a will should be typed but a handwritten will is still valid provided it is clearly printed. The same writing instrument i.e. a typewriter or pen, should be used throughout the document to prevent confusion about the intention of the will. Although a will may be in any language, to avoid issues of translation and interpretation it is recommended that it be drafted in English.
A will should be executed by the person making it (testator). It is not an inherent requirement but recommended that the signature of the testator appears at the end of the will. If the will is longer than a page the testator and the witnesses should also sign their name or initial the bottom of each other page in the will.
The will should be dated when it is signed. If no date is inserted then it may be a requirement for the witnesses, once the testator passes away, to provide an affidavit regarding the date the will was signed. A will is effective from the date the testator passes away, not from when it is signed. The date, however, is crucial to prove that the will is the testator’s last one.
The testator’s signature should be witnessed by 2 witnesses over the age of 18 years old, after the testator has signed. This is known as attestation. Both witnesses must be present together at the time the testator signs the will. To avoid confusion, it is recommended the witnesses’ signatures are directly below the testators.
When Should You Update Your Will?
You may review your will as frequently as you wish. However, it is recommended that you should at least review it every 5 years to ensure it still reflects your wishes and situation.
Your will should be updated if:
You get married;
You start or end a de factor relationship;
You get divorced or your marriage is annulled;
Your children, grandchildren or any other persons who you wish to include in your will as beneficiaries are born;
Your assets or financial situation changes;
Any person nominated in your will as a beneficiary passes away;
Any person nominated in your will as an executor/trustee or guardian passes away or is unable or unwilling to act due to their age, health or any other reason;
You wish to change your beneficiaries, executors/trustees or guardians names in your will;
You retire;
You are affected by a natural disaster; or
You make a valid arrangement with the trustee of your superannuation fund to pay the proceeds of your superannuation into your estate.
Marriage will officially cancel your will, except where it makes a gift to your spouse or nominates them as an executor/trustee or guardian unless your will proves that it has been drafted with marriage in mind.
Divorce will not legally deem your will invalid but it will delete any term in favour of your former spouse, as well as any appointment of them as an executor/trustee or guardian.
Where Should You Keep Your Will?
Your will is a very important document and therefore must be kept in a safe place. Solicitors and private trustee companies will generally hold a will for you at no charge. The executor/trustee, close friend or family should be informed of where your will is stored so they can easily locate it once you pass away.
If you have any questions about wills or would like assistance with drafting or updating your will, contact NB Property Law for a no obligations free consultation.
Written by
Kayleigh Swift, Director
(07) 3876 5111
About the author
Kayleigh Swift is a Director of the Wills and Estates and Property team who assists clients with finding a way forward with their legal matters. With a high level of experience in estate planning, commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions, property development and body corporate legal matters, Kayleigh provides practical advice to ensure clients estate planning needs are met and seamless property transactions are undertaken.