Wills, Probate & Estates

Many people are aware of the importance of having a Will, yet many people still do not have a Will.

For those who do have a Will it is important to remember to update your Will when your circumstances change for example when you get divorced or start a family. A Will should not be something that you do once and forget about.

Wills and Estates Planning

Our estate planning practice involves wills incorporating elaborate testamentary trusts.  We are also careful to consider the impact of non-will assets such as superannuation, jointly held property and life insurance on estate planning. We assist our client to distinguish between assets controlled by them. This often involves reviewing family companies and family trusts.

Business Succession Planning

We recognise the importance of prudent business succession planning to cover the possibility of retirement, incapacity or death of a business owner. We ensure adequate agreements and insurance are in place so that the effective legal transfer of managerial control and ownership of a business can take place without funding concerns.

Obtaining Grants & Estate Administration

We regularly prepare applications for grants of Probate and Letters of Administration, including applications for Probate involving informal Wills and rectification of Wills.  We prepare applications for Letters of Administration involving intestacy and partial intestacy. Our work involves obtaining grants for beneficiaries living overseas as well as resealing overseas grants in the NSW Supreme Court.

Estate Litigation

In circumstances where Wills or estates are contested and the matter proceeds to litigation, we work closely with our litigation specialist, advising and acting on contested probate litigation. Our advice is regularly sought on contested estate litigation including disputes over the right burial, informal testamentary documents, Will interpretation, rectification of Wills, Testamentary capacity, family provision challenges to Will and the interpretation or failure of charitable gifts.

Should I Make A Will?

Yes. It is essential to make a will if you are concerned about who will receive your assets and belongings after you die. It is particularly important to make a will if you have a family or other dependants.

Even if you are married with dependants you need a will. If husband and wife are killed together, for instance in a motor accident, the older person is normally presumed to have died first. If you were the younger person, you might have inherited assets from your spouse- even though you were by then dead- but if you had not made a will your assets would be distributed under a rigid formula regardless of what you might wish.

What Is A Will?

A will is a legal document that names the people you want to receive the property and possessions you own at the date of your death. These people are known as your beneficiaries.

Your property and possessions include everything you own: your home, land, car, money in bank accounts, insurance policies, shares, jewellery, pictures, and so on. Making a will is the only way you can ensure your assets will be distributed in the way you want after you die.

What Is A “Valid” Will?

A valid will is one that has been accepted by the court and put into effect by a grant of probate. To be valid your will must be:

In Writing-
handwritten, typed or printed;

ideally your signature should be at the end of the will;

two witnesses must be present when you sign your will or acknowledge it and they too must sign in your presence, but they do not have to be present together at the time they sign.

If your will is not made in this manner it may not be enforceable; the court has the power to grant or not grant probate (confirm that the will is valid) and your property could be disposed of as if you had not made a will. In exercising this power, the court needs to be satisfied that the document sets out how you want your assets to be distributed.

How Can I Make Sure My Wishes Are Carried Out?

You should appoint in your will a person called an executor to handle your affairs after you die. If you wish, you can name more than one person to act as executor. You can choose anyone to be your executor- your spouse, relative, a friend, your solicitor- but you should first ask them if they are prepared to take on the task and confirm with them that they have been appointed.

Being an executor is a very responsible position. The executor has to obtain probate of the will and pay any taxes, debts or expenses before finally distributing the balance to the beneficiaries named in your will. An executor who is not a beneficiary may apply to the court for payment for his or her work as executor.

What Happens If I Don’t Make A Will?

The legal procedures are more complicated and time-consuming and may cause expense, worry and even hardship to your family.

The law provides a formula which sets out who is entitled to the property of a deceased person who has not left a will. The formula may not distribute your assets in the way you would have wanted.

It is not true that the government takes a deceased person’s property if there is no will. This can happen only in exceptional cases where there are no close relatives or persons in a family relationship surviving the deceased.

Can I Alter My Will If I Change My Mind?

Yes. You are free to alter your will at any time. If your circumstances change, you can and should alter your will. However, you cannot simply make an alteration by, for instance, crossing something out on the original will and writing in your new wishes.

If the alterations are minor, you can make a codicil (a separate document in which you change a provision in your will) but it is usually better to make an entirely new will unless the change is very simple. A codicil must be signed in the presence of two witnesses, in the same way as when you make your will.

What If I Marry Or Divorce?

If you made a will before you married, it will automatically be revoked when you marry, unless it was made with a particular marriage in mind, or stated in general terms that it was made in contemplation of marriage. So if you marry, it is more than likely you will need to make a new will.

Any gift or appointment (e.g. as an executor or guardian) in favour of a former spouse in your will is automatically revoked when a divorce decree becomes absolute or a decree of nullity is made. It is in your best interest to make a new will or codicil if you are divorced or have been separated for an extended period.

Can I Leave My Assets To Anyone?

Yes, but you should make proper provision for your spouse and children, including ex-nuptial children. If you do not, they could take proceedings under the Family Provision Act to obtain provision, depending on their needs.

Where Should I Keep My Will?

Keep your will in a safe place. It is preferable not to keep the will yourself in case it is mislaid. If the will is mislaid, it may be presumed to have been revoked. Solicitors hold wills on behalf of clients, usually at no charge. You should keep a copy of your will and note on it where the original is kept.

It is advisable to tell your executor where your will is kept. If you want to give personal instructions that you do not want to appear in your will, you can simply leave your executor a letter of instructions.