The rules for making a will in the ACT are contained in the Wills Act 1968. If you die without having made a valid will, your assets may not go to the people you want them to. You will be treated as an ‘intestate’ and your assets will be divided based on a statutory formula amongst certain relatives or the ACT government, which may not reflect your wishes. You should have a will even if you do not consider yourself wealthy.
Who can make a will?
Generally speaking, only adults are capable of making a valid will. A child can make a valid will if the child is married or in a civil union, or if the Supreme Court orders them to do so, which will only occur if the Supreme Court 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.
How to make a valid will
Other requirements for a valid will include:
The will must be written and you must sign it at the foot or end of the will, or direct somebody else to sign it in your presence. There are specific rules to prevent your will from being invalidated if you do not sign it in the correct spot. However, you need to make sure that there are no dispositions to beneficiaries specified after your signature or they will have no effect.
Your signing of the will must be made or acknowledged in the presence of at least two witnesses. Your witnesses can also be beneficiaries or their partners. This is different from the other States and Territories, where at least two witnesses should not be beneficiaries. It is generally advised, however, that you do not have a beneficiary as a witness in order to avoid any suggestions of coercion, undue influence or duress.
Each of the witnesses must sign the will in your presence as well as that of the other witnesses.
You must have ‘testamentary capacity’ to make a valid will. Generally speaking, this means you must be of sound mind and understand the effect of having a will, what property you own, and who your beneficiaries are. If you do not have testamentary capacity, the Supreme Court can order that a will be made on your behalf.
If you have a valid will, the executor of your estate will apply on your death for a grant of probate in respect of your estate. This means they are granted the right to administer your estate and distribute your assets in the way you specified in your will.
Even if your will does not meet the formal requirements set out in the Wills Act, the Supreme Court can treat a document as your will if it is clear that it was intended to reflect your testamentary intentions. In reaching this conclusion, the Supreme Court will consider the document itself and any evidence of its execution. If the Supreme Court does not conclude a document to be your will, you will die as an intestate and your assets will be distributed in accordance with the Administration and Probate Act 1929.
Wills made in other jurisdictions
The ACT will also accept a will as valid if it was made in another State or Territory and the requirements of that State or Territory for a valid will are satisfied.
Does getting married or divorced affect my will?
If you get married or enter into a civil union or a civil partnership such as a de facto relationship after making a will, the will becomes 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 person to whom you were married or with whom you entered into a civil union may still be valid.
If you get divorced after making a valid will, the will itself is not revoked. Instead, only the sections of the will specifically relating to your former partner (including dispositions and appointments) are revoked.
Can I name whoever I want as a beneficiary?
It is your decision as to whom you distribute your assets. However, some relatives may be able to seek a ‘family provision order’, which requires a part of your estate to be applied for their benefit, even if you do not name them in your will as beneficiary.
If you do not want to directly distribute your assets to a specific beneficiary, you can distribute your assets by setting up a testamentary trust in your will for your beneficiaries. A testamentary trust will then hold the assets on trust for your beneficiaries. This means the assets will not be held by your beneficiaries in their personal capacity, protecting them from your beneficiaries’ creditors.
There are also tax advantages to using a testamentary trust, because the assets can then be diverted to beneficiaries in the most tax effective way. However, setting up a testamentary trust will not prevent that person from bringing a claim against the Estate seeking further provision by way of a family provision order.