Civil Law | Wills and Estates in Canberra

Wills and Estates in Canberra

In Canberra, good estate planning requires a testator to execute and regularly review their will to ensure that the document is reflective of their testamentary intentions. While making a will may seem like a straightforward proposition of “who gets what”, there are, in fact, complexities and potential pitfalls in this area of law. The solicitors at Go To Court Lawyers can help you understand these complex issues and provide advice to allow a testator to think about all the consequences of wills and estate planning in Canberra.

Wills and estate planning in Canberra

The simplest form of a will leaves the majority of an estate to one person (most commonly the spouse of the deceased) and appoints this same person as the executor to manage the estate. Another form of simple will appoints an executor and leaves the assets of the estate to the testator’s children as the main beneficiaries.

However, not everyone has such simple testamentary intentions. A specialist wills and estates solicitor can help a testator account for any unique issues that arise from blending families, and establish testamentary trusts to provide for special needs beneficiaries, or advise on the financial benefits of different estate planning options.

To be a valid, formal will in Canberra, a document needs to adhere to specific statutory requirements. The Wills Act 1968 stipulates that a testator must legibly type or handwrite the document, and sign at least the bottom of the document in front of two witnesses. In most Australian jurisdictions, the witness to a signature on a will cannot be a beneficiary under the will. In Canberra, the rules about witnesses differ to other jurisdictions, as witnesses do not need to be impartial and can be the deceased’s spouse or beneficiaries of the will. Despite this rule, it is advisable to err on the side of caution in any case and ask people who are not beneficiaries to sign the will, to forestall any later accusations of undue influence.

Who can make a will in Canberra?

Particularly for young adults, estate planning can seem like a far off activity, only necessary around retirement or if someone has a concerning medical diagnosis. On the contrary, it is advisable for every adult with testamentary capacity to create a will to account for what they cannot foresee. A will not only protects a testator’s loved ones if they pass away unexpectedly, but if a testator sustains an injury that affects their mental faculties, the pre-existing will is the best evidence of their testamentary wishes.

Wills and estates in Canberra: urgent instruction

A solicitor is sometimes called upon to take urgent instruction from a client who wants to make arrangements for their will and estate before they die. In Canberra, a will that is drafted and executed when a testator is physically or mentally unwell is unfortunately susceptible to challenge on the grounds of testamentary incapacity. It is essential that a competent and experienced solicitor follow all the established protocols for taking urgent instruction. A Go To Court solicitor will take care to safeguard against this issue and ensure that the will reflects the testator’s true wishes. A solicitor must check that the deceased had testamentary capacity at the time of making the will and was not operating under undue influence. The solicitor will usually make formal note of all factors that could inform the Court during a possible litigation of the will, such as whether the testator exhibited mental acuity and was under heavy medication that would impact on their thinking. This will allow the solicitor to prepare an affidavit for the Court if the validity of the will is called into question.

Updating wills and estates in Canberra

It is important that a testator understands that their responsibility does not end once they sign a will. It is essential that a testator regularly review and update their will to reflect their changing circumstances. A will should not only be revised to include new assets, but also updated in case the named executor or beneficiaries passes away. Important life events (such as relationship and financial changes) should prompt a testator to review their testamentary arrangements. 

Probating wills and estates in Canberra

After a testator passes away, the executor is the person who assumes authority for the deceased estate. In Canberra, the executor is responsible for filing for probate of the will with the Supreme Court of the ACT. During probate, the court will prove the document as valid and validate the applicant’s appointment as executor to manage the estate.

Questions To Consider When Estate Planning In Canberra

• Who should administer your estate after you die? Do you have an executor in mind? Should you appoint several possible executors?
• Would you like to bequeath your estate to beneficiaries in percentages or through specific bequests?
• Who would you like to take over running your business?
• Should you create testamentary trusts for more vulnerable beneficiaries?

The solicitors at Go To Court Lawyers can help you with these questions and many others so that your will is comprehensive and fully reflective of your testamentary wishes. Go To Court Lawyers has a wills and estates Canberra team that is here to help you with all your estate planning needs.