What is a will?
A will is a legal document that sets out how your property is to be disposed of upon your death. In New South Wales, wills are governed by the Succession Act 2006. In the absence of a will, your property will be distributed to your family members according to a predetermined formula set out in the Succession Act. This could result in your estate being distributed in a way that does not reflect your wishes.
A will can set out your intentions in relation to all your property, including real estate, cash, shares and other personal effects. A will can also appoint an executor, a person to administer your estate and ensure that your wishes are carried out.
Your will can also detail how you want your children and pets to be cared for after your death and your wishes for conducting and paying for your funeral.
Making a will
It is strongly advisable to seek the advice and assistance of a lawyer in preparing your will. A lawyer can help you to ensure your will is clear and unambiguous and that it is not drafted in a way that leads to any unintended consequences.
There are a number of formal requirements that must be met in order for a will to be valid. A will must be in writing, it must be signed and it must be witnessed by two people. The witnesses must not be beneficiaries of the will or their spouses. For a will to be valid, the will-maker must have testamentary capacity, meaning they must be legally and mentally capable of making a will.
When determining testamentary capacity, a lawyer must be satisfied that:
1. The will-maker understands the nature of the act of signing a will;
2. The will-maker understands what property they are disposing of in their will;
3. The will-maker understands who they ought reasonably to make provision for in their will (and therefore any potential challenges to the will);
4. That the will-maker is of sound mind.
While generally, you must be over the age of 18 to make a will, wills can be made by minors in some circumstances.
Challenging a will
A will can be challenged on the basis that it leaves inadequate provision for a spouse, child or someone that had a close relationship with the deceased. If you want to challenge a will, you have 12 months from the date of the will-maker’s death to do so (Section 58).
A will is challenged by filing an Application for a Family Provision Order accompanied by a detailed affidavit setting out the circumstances of the case in the Supreme Court of New South Wales. This application is served on the executor of the estate, who then files a response, seeking to establish the validity of the will. Parties are required to attend mediation to attempt to resolve the dispute. In the event that resolution is not reached, the matter will proceed to hearing.
In considering whether to make a Family Provision Order, the court will consider all the circumstances including the financial situation of the applicant and their relationship with the will-maker.
An intestate is a person who dies without a will or who dies with a will that does not dispose effectively of all of his or her property. Roughly half of Australians die without having made a will.
If a person dies intestate, their estate is disposed of according to a predetermined inheritance formula set out in Part 4 of the Succession Act. If the deceased has a spouse or domestic partner, the spouse or partner is entitled to the whole estate. If the deceased has children (who are not the spouse or partner’s children) the estate is divided between the spouse or partner and the children. In the absence of a partner or children, the estate defaults to parents, siblings, grandparents and then aunts and uncles.
If a will is found by a court to be invalid, the estate will proceed to be dealt with as an intestate estate.
Limitations of the Succession Act
The Succession Act has been criticised for setting out an inheritance formula that is unsuitable for some cultural groups, notably Aboriginal people. Under the Succession Act, children who are legally adopted are recognised as ‘issue’ for the purposes of intestate estates in the same way as biological children. However, there is no recognition of informally adopted children, of whom there are many in Aboriginal communities. It is therefore particularly important for Aboriginal people to obtain competent and culturally appropriate advice in relation to will-making.
If you require legal advice or assistance in relation to making a will, please contact Go To Court lawyers.