Under Australian succession law, marriage generally cancels an existing will, subject to some exceptions.
Getting married is an important life event. There is a lot to organise, in addition to making arrangements for the wedding ceremony itself.
However, if research on will making in Australia is any guide, the making or updating of existing written instructions as to what is to happen on death following the changed personal circumstances, probably won’t feature highly on the list of things to do.
Yet attending to making a valid will taking into account changed or soon to be changed circumstances is important. If not, the rules of intestacy would apply on death, and these may not produce the desired outcome.
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.
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 →
A family tree is a record of information about family relationships. It is useful to have a basic outline of close family/next of kin relationships to keep with your personal papers. This maybe unnecessary you might think.
However a family tree can be helpful in preparing to make a will, especially where large, complex estates, blended families and business succession issues are involved. More →
Dying without leaving a will, or leaving an invalid one, is to die intestate. Dying intestate means property left (the estate) is distributed according to the intestacy law. The intestacy law has been prescribed by legislation as the ‘default’ rules to apply in these circumstances. The problem is that the intestacy formula for distribution may not produce the desired outcome.