Do I Need a Will?

If you do not have a will, the short answer is yes! If your circumstances have changed since you made your will, yes! If you have separated, definitely yes! Yes, yes, and more yes.


If you don’t have a will then when you die, a lot of decisions will have to be made. Everyone will be wanting to do what they think you WOULD have OR what they think you SHOULD have arranged.

The decisions that have to be made include:

– Who will manage your estate?

– Who will be the trustee to hold the bequest for your children?

– Who will inherit, i.e., who gets what?

– What will happen to the assets, i.e., how will they be transferred from your estate to the beneficiaries?

Most clients I speak with believe that the only issue when someone does not have a will is ‘who will get my estate?’ This is only one aspect of what needs to be decided if you do not have a will!!

If there are disagreements (for example by your children, ex-spouse, current spouse etc.) it will cost YOUR ESTATE in legal fees to get to a resolution. This cost means that your loved ones may miss out on part or all of their inheritance but on top of that they will have to endure the stress of negotiations and even Court proceedings that can last months or even years.

If you have separated and not yet divorced you must review your estate planning urgently especially if you do not want your ex in your house arranging your personal belongings and attending to your estate.


How to prepare your will?

A lot of people wonder if they can make a will using a Will kit. Be warned. There are so many risks with will kits, too many to mention here! So that curiosity does not kill the cat (who may not have a will) I have included some possible scenarios below:

1. The lawyer will be alert to any aspects of your will that may cause an argument later (i.e. contested).

After you die, someone may argue that you were not competent at the time when you made your will. This is often a key point of dispute in Court. In circumstances where the testator saw a lawyer then lawyers notes can be used as evidence about whether the testator had the required capacity. Your lawyer is charged with an obligation to assess a range of factors that contribute toward testamentary capacity.

If your lawyer anticipates that there may be an issue, your lawyer will arrange for your doctor to provide a letter that is contemporaneous (i.e. evidence at the time of the will making). Both the lawyers notes and the doctor’s letter are valuable evidence that can support the validity of your will and will protect your testamentary intentions. There are other ways that you can protect the validity of the will however, these will depend on your circumstances.

2. Your lawyer will advise you as to who can make a claim on your estate.

Most clients I speak with are surprised at the wide scope of ‘eligible’ persons who can apply for a family provision claim, for example, an ex-spouse is within the category of person who can make a claim on your estate. A lawyer will help you identify these people and will provide you with a range of strategies to protect your beneficiaries from a claim being made.

3. Your lawyer will advise you on what assets will and will not form part of your estate.

For example, your superannuation does not form part of your estate. Most clients proudly inform me that they have already ‘done the nominations’ and will sit up when I tell them that those ‘nominations’ are not binding on the superannuation fund trustee. You will need to complete a Binding Nomination Form, this form will require two witnesses to sign, and please be aware that they are usually lapsing and will need to be done every two years.

If you lose capacity (through accident or illness) you will not be able to update your Binding Nomination Form meaning that your nomination will lapse. Once your nomination lapses the trustee has the discretion to invite people or accept invitations from people other than your prior nominated beneficiaries. To avoid this, you will need a special clause added to your Power of Attorney to enable you Attorney to update your lapsing Binding Nomination Form (provided that the update is consistent with your prior nomination).

But wait, there is more!!! These are only a few examples to highlight the importance of obtaining legal advice with your estate planning.

For further reading about what happens if you don’t have a will you may wish to check out the Supreme Court of NSW website.

If you are not sure what to do next, please phone or email me to discuss your options.