A home made will is one prepared by the willmaker themselves. Maybe using a “will kit” or something found online or a digital recording. However made a home-made will is composed without the services of a lawyer and the benefit of individual legal advice. This may seem an economical and convenient approach to will-making. While …
rectifying a will
An outline of a how a gift over works in a will. A gift over in a will is when the person designated to receive it has died, the gift then passes over to a substitute person, if so named to take.The substitute beneficiary only inherits if the main beneficiary has already died, not survived the deceased or died before attaining a vested interest.
Finding a mistake or error in the will of the deceased can cause extra difficulties in sorting it out. Many couples wish to leave their estates to each other when they die, and then to their children. They usually nominate the same people to act as their executors and trustees, typically each other, and one or more of their children may be appointed as substitutes.
Sometimes a clerical error or some other aspect about a deceased’s will means that practically speaking what the deceased intended doesn’t work out. Fortunately all is not lost. Succession legislation provisions give the Court a power to rectify the will to give effect to the deceased’s intentions if the Court is satisfied beyond reasonable doubt that the will does not. An application to the Court for a rectification order must be made within twelve months in NSW. An extension of time may be possible in special circumstances and if the estate has not been distributed. For an application to succeed there must be clear and convincing proof.
A codicil is a short additional document, typically one or two pages, used to make a minor alteration to an existing will. Both the will and the codicil documents together form the “will” of the person. To be legally valid the codicil document must be signed and executed in front of witnesses in the same way as for a will.
A codicil is a convenient way to change an executor or trustee named in a will. For example in a situation where someone appointed as an executor has died a codicil can be used to replace them with someone else who is willing to act when the time comes. Read more.
Why make a will and what can it do? Dying without leaving a will, or leaving an invalid one, is to die intestate. Dying intestate means property left by the deceased, their 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.