Making a Will (ACT)
In the ACT, wills are governed by the Wills Act 1968. If a person makes a valid will, their estate is likely to be distributed according to their wishes. If a person dies without a valid will, their estate will be dealt with according to the rules of intestacy. This means that their assets may not go to the people they wanted them to go to. This page deals with making a will in the ACT.
Who can make a will?
In general, only adults are capable of validly making a will in the ACT. However, a child can make a valid will if they are married or in a civil union, or if the Supreme Court makes an order allowing them to do so. The Supreme Court will only order that a child may make a will if it is satisfied that the child understands the effect of having a will.
A child can also make a will ‘in contemplation’ of marriage. However, it will only become valid from the time of marriage.
Making a valid will
For a will to be legally valid, it must comply with certain requirements. In some circumstances, wills that do not comply with the formal requirements may still be upheld as valid by a court. However, it is always preferable for a person to make their will in a way that minimises the likelihood of challenges to its validity.
In the ACT, the formal requirements for a will include the following:
- The will must be in writing and the testator must sign it at the foot or end of the will, or direct somebody else to sign it in their presence.
- The will must be signed in the presence of at least two witnesses. Each of the witnesses must sign the will in the testator’s presence and in the presence of the other witness. The witnesses can be beneficiaries under the will. If any changes are subsequently made to the will, those changes must also be signed and witnessed.
- The testator must have testamentary capacity. In general, this means they must be of sound mind and understand the effect of having a will, what property they own, and who their beneficiaries are. If a person does not have testamentary capacity, the Supreme Court can order that a will be made on their behalf.
Wills made in other jurisdictions
If a person dies in the ACT with a will that was made in another state or territory, it will be valid provided it was made in accordance with the formal requirements for a will in that jurisdiction.
Marriage and divorce
If a person marries or enters into a civil union or civil partnership such as a de facto relationship after making a will, the will is revoked unless it was prepared ‘in contemplation’ of the marriage, civil union or civil partnership. However, some of the dispositions and appointments made under the will to the testator’s spouse or partner, may still be valid.
If a person gets divorced after making a will, the will itself is not revoked. Instead, only the sections of the will specifically relating to the testator’s former partner (including dispositions and appointments) are revoked.
Can I name whoever I want as a beneficiary?
When a person makes a will, they can distribute their estate in any way they want. However, if a will does not make adequate provision to a family member to whom the testator had an obligation (such as a partner or child), that person may be able to apply for a ‘family provision order’, requiring the distribution of the estate to be altered. In other words, the will may be contested.
If a person wants to make a will that does not make provision for someone close to them, they should consult a lawyer before doing so. A will that does not make adequate provision for a family member is more likely to be upheld if the document makes it clear that there is a specific reason for this decision and that the omission is intentional.
If a testator does not want to directly distribute assets to a specific beneficiary, they can distribute assets to them via a testamentary trust. The testamentary trust will then hold the assets on trust for the beneficiaries. There are a number of reasons that a testator may choose to set up a testamentary trust.
When a testamentary trust exists, the assets that are held on trust are not held by the named beneficiaries in their personal capacity. This means that the assets or money is protected from the testator’s creditors. There are also tax advantages to using a testamentary trust. Such a trust allows assets to be applied to the beneficiaries in the most tax-effective way.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.