We make a will so as to provide for our loved ones; to be able to choose who will inherit our property. But writing down our intentions so that they are clear and unambiguous for others when we are no longer around, is not easy. For example take the words “issue” and “children”. The word “issue” is a legal term meaning all of a person’s descendants; not just their children.
Who can witness or attest the signing of a will for it to be valid in law? And what must they do?
The legal formalities to make a valid will require the will-maker to sign their will in the presence of at least two people, acting as formal witnesses to the event. Executing a will in front of witnesses fulfils a protective function.
Witnessing a will – key points:
1. The will-maker must sign the will first in front of two or more witnesses, all present at the same time and in the same place.
2. Witnesses must be mentally competent and be able to see the will-maker make their signature, (the attestation) or other sign as appropriate.
3. At least two witnesses having attested the will then sign their names; in confirmation that the will-maker’s signature, made in their presence was genuine.
4. Anyone likely to inherit under the will, ie a beneficiary, including their spouse/partner should not witness it – although the law has changed in some states and in others exceptions are permitted. Seek legal advice.
By B Stead
Meaning of “nieces and nephews” – the general assumption
Our nieces and nephews are the children of our brothers and sisters, this hardly needs saying. If someone wishes to leave a gift to their “nieces and nephews” in their will, it should be a simple matter, when the time comes, to identify which individuals are a niece or a nephew and so entitled to share in the inheritance. However circumstances and relationship may change from the time a will is made to the date of death.
Administration of a deceased person’s estate – proving the validity of a will
By B Stead
Probate is the official process to establish or prove, whether a deceased person’s will or testamentary document is valid and intended to be their last will.
A grant of probate is the document issued by the Court of Probate after the examination process. A type of grant of representation, it is an order of the Court certifying that the executor (or personal representative) named in the document is lawfully authorised to administer the estate of the deceased person. More
By: B Stead
Left out of a will or seeking more – who can apply for provision?
Family provision laws were introduced to remedy situations where willmakers failed to leave adequate provision for the proper maintenance, support and advancement in life for close family, usually spouses, partners and children.
The legislation gives the court1 discretionary power to order provision from a deceased person’s estate, where found to be inadequate, to “eligible” applicants, under certain circumstances. It is not automatic.
The residue of a deceased person’s estate is what is left over after the payment of all expenses in connection with the estate. Expenses include payment of the funeral, costs incurred in the administration of the estate, payment of the deceased’s debts, the discharge of any liabilities of the deceased, and the distribution of any specific gifts made under their will. The residue or residuary estate is property of the deceased not disposed of by the terms of their will.
A codicil is a document used to make minor changes to an existing will
A codicil is an additional document added or appended to an existing will for the purpose of making a minor change, amendment or alteration to that will. An example of a minor amendment is when someone wants to change their executor/s and/or trustee/s or appoint a new one.
Legal validity of a codicil
It is important to note that to be legally valid a codicil must be signed and witnessed in the same way as for a will.
Codicil to existing will or a new will?
As described already, codicil is a short document which may be used when only a minor change is required to a will. If the will was made a long time ago, it may be best to make a new will altogether so there is no inconsistencies. Seek professional advice.
This article looks at:
- What is a codicil?
- Making a legally valid codicil
- Codicils must refer to the date on the correct will
- Revoking part of a will by a codicil
- Reviving an earlier will by a codicil
- Meaning of ‘will’ includes a codicil
- How must codicils be signed?
- Storing a codicil
- Potential problems
- An undated, unsigned ‘homemade’ codicil
Interpreters, translators and will-making
Interpreters provide valuable services. Non-English speaking people or people who don’t have English as a first language may need the services of an interpreter or translator to help them understand in their language aspects of the will-making process. More
Wills are important private and confidential documents. An original will should be stored in a safe and secure place after being signed and witnessed. Ideally the place should be fireproof and the like. Depending on the status of family relationships, if kept at home, it the document should be protected from tampering or destruction. And don’t forget to inform your executors where the will is located.
Probate law requires that the original will be attached to an application for a grant of probate from the court. Without it, the timely administration of the deceased’s estate is delayed until the situation is resolved. A summary of the usual approaches to storing a will follows.
Dying without a will (intestate) – who inherits?
Intestacy is when you die without leaving a will. You are said to have died “intestate”. In the absence of instructions left in a valid will, who will inherit your property? Succession law contains strict rules to deal with this problem.
This is an outline of the application of the intestacy rules. They specify the order of entitlement as to who inherits and in what proportion, as well as the provision of a sum of money (statutory legacy) for the spouse or partner. More
By B Stead
Pets are family – arranging care for them when their carer dies
Cats, dogs and other pets are really family. So making arrangements for their welfare when their owner dies is worth doing to help relieve others of difficult decision making at a stressful time.
While the matter can be discussed and arranged informally among family or friends, this approach may not be for everyone. Alternatively a will is a useful and practical way to leave instructions for what you would like done with your much loved pets.
By B Stead
An enduring authority
Legislation in each state and territory provides for a person to make ‘enduring’ arrangements, set out in a formal legal document, (callled an enduring power of attorney), where they name someone else to make certain decisions on their behalf, in the event they become incapacitated and unable to continue managing their affairs.
An enduring power of attorney is a powerful document
In considering the making of an enduring power of attorney in the personal and family context, a Judge of the New South Wales Supreme Court said the following:
By B Stead
Who can make a will to dispose of their property?
Those who can make a will, change or cancel (revoke) a will under state and territory legislation must:
- be an adult, (18 years and over); and
- have the required mental capacity in regard to their testamentary intentions, meaning:
- know (generally) what they own;
- who they want to give it to, any dependents to be provided for;
- be able to weigh up the consequences of their choices, potential claims;
- understand that what they are doing is disposing of their property on death and its effects;
- understand that on signing their will document, what it states will become enforceable when they die.
Disposing property – what can be disposed of by a will and what can’t – property ownership and control issues
Disposing property by will, in the will-making process requires considerations to be given to what you own in your individual name, as opposed to what you might control, see further below. As only property owned in a personal or individual name can form a deceased estate, it is only this which can be transferred by will, (or the rules of intestacy).
Other property may be owned in the name of a company or trust. In these entities an individual may have control through shareholdings or a power of appointment. When it comes to making a will, it is important to remember that such assets won’t form part of a person’s deceased estate and therefore cannot be disposed by their will. See the table below for examples of what are estate (disposable by will) and non-estate assets. Making a list of property, money and things to be disposed of and who owns what is important. More