legal studies

Where there’s a will there’s a way – unless you don’t have one. If you’re unsure about making a will or wonder about the validity of your will, two solicitors specialising in estate planning and wills set the record straight.

There are many misconceptions about making a will according to Solicitor Carrie Payne of Business Depot. The biggest, she says, is that people think they don’t need one.

 

1. “I Don’t Need a Will”

Payne says people think their age or circumstances, including how much they own, means that it’s not worth making a will.

“There is also a level of apathy adopted by some to the tune of ‘It won’t affect me’ or ‘I don’t care – I’ll be dead’ she says.

Everyone over 18 should have a will.

“The emotional and financial cost to your family or friends, having to prove your intentions or just progress through the normal aspects of administering an estate, are significantly costlier and more complex without a valid will.”

“Similarly, without a valid will, predetermined rules, which vary from state to state, automatically set out who should receive your estate and in what proportions. So, it’s important that you make a will to have a say in who receives your estate and when.”

 

2. “I Can Do It Myself (The Shorter the Better)”

Payne says people can make a valid will independent of legal advice aided by a variety of ‘do it yourself’ will kits. But advises caution, as these ‘kits’ can cause considerable pain for those administering your will and the beneficiaries of your estate.

People should always consider obtaining legal advice prior to preparing a will.

The common ‘one-page’ will lacks flexibility. “The people administering your estate should be able to make decisions that are relevant for the circumstances at the time,” says Payne.

Payne says these wills address the bare rules and powers in trusts law and often lead to practical and potential tax issues for beneficiaries and administrators.

 

3. “Wills Are Complex”

In the past, there were strict rules about making a valid will.

“Radical change to the laws governing the making of wills occurred in 2006, providing the court with the discretion to dispense with the formal requirements of making a will,” says Payne.

For clarity, the main requirements for making a will are broadly as follows:

1. It must be in writing, signed by the person making it;
2. It should be dated at the time of signing;
3. Two independent people over the age of 18 should witness the signing of the will.

“These rules now act as a guide in many circumstances, with ‘informal’ wills being written on walls, truck fenders and recently, an unsent text message was found by the court to be acceptable as evidence of a person’s testamentary intentions,” she says.

Despite this new flexibility, Payne says it is important to restate that not having a will is emotionally and financially burdensome on your family, as most informal wills must be proven in court at great cost.

 

4. “My Will Covers All My Assets”

“Assets can be broadly separated between two categories: ‘estate assets’ and ‘non-estate assets’. Your personal bank account (provided it is not a joint account) is an example of an estate asset,” says Payne.

Assets in trusts, companies and even superannuation are not technically estate assets and are not primarily governed by the terms of your will.

“As such, it is important to get appropriate advice to ensure the right people get both your estate and non-estate assets at the right time,” she says.

 

5. “I’ve Already Got a Will”

“Many people assume once they have a will, they don’t need to change it unless they change their mind about gifts or appointments under the will.”

Wills should be regularly reviewed to ensure they are up-to-date with your changed circumstances (even those that you are not aware of affecting your estate) and for changes in law.

“Further, there are circumstances where your will (or parts of it) can be automatically revoked whether you are aware or not of the revocation. Marriage or divorce automatically revoke parts of or all of a will (depending on the circumstances) and recent changes to the laws around the making of wills has applied similar revocation rules around the ending of de facto relationships.

“As such, in the absence of other obvious changes in circumstances or objectives, people should review their will every 12 months to ensure it is still appropriate,” says Payne.

 

Senior Associate Juanita Maiden ofMacDonnells Law lists the following misconceptions about wills.

 

6. “Wills Are Too Expensive”

“Most basic wills are prepared by qualified solicitors for minimal set fees. On the flip side, small errors made in home kit wills will usually result in expensive court litigation costing tens of thousands of dollars and which will often be at the cost of the estate,” says Maiden.

 

7. 7. “The ‘Super’ Myth”

“Superannuation is treated very differently to your other assets and does not automatically form part of your estate left via your will. Expert advice is required to ensure that your superannuation is dealt with as you wish on your death and that the complex superannuation legislation is complied with,” she says.

 

8. “My Family Will Get it all Anyway”

“If you don’t have a will your estate will be left according to a specific legal formula which may or may not be to who you want to receive your estate after you die. A will allows you to nominate exactly who you wish to receive what upon your death.”

 

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