Do I need a solicitor to prepare my will?
Writing your own will may seem easy enough, but the laws around estate planning can be confusing. Homemade wills are often not drawn up properly and the will-maker’s intentions may not be clearly expressed. As a result, homemade wills are more likely to be contested which can lead to unintended results. This may require the executor to apply to the Court to seek an order as to the meaning of the will. In the complicated circumstances of blended family wills, this could lead to unintended results and a large bill payable by the will-maker’s estate. We recommend having a solicitor construct your will, to avoid these pitfalls and ensure that your estate is distributed in accordance with your wishes.
What is a will?
A will is a legal document that sets out how the will-maker’s property is to be divided after death. Under a will, an executor is appointed who will act as trustee for the will-maker’s estate. The executor must:
- Collect all assets;
- Pay all debts; and
- Distribute the will-maker’s estate in accordance with the Will.
For the will to be valid, the will-maker must have testamentary capacity, which means that the will-maker must be over 18 years old and understand what they are doing. Other requirements include that the will-maker’s specific wishes must be in writing and that the will is signed in the presence of two witnesses.
Why should I make a will?
If a will-maker dies without a legal will, the estate will be distributed according to the rules of intestacy. These laws as of 1 March 2010 are found in the Succession Amendment (Intestacy) Act 2009 and provide a predetermined formula for how the person’s estate will be distributed. This means that the will-maker has no say over how their estate is distributed after death.
Can you change a will?
The will-maker is able to change their will whenever they like, however it is not as easy as just crossing something out and writing something different. To make a minor change, the will-maker will need to make a codicil. A codicil is an authorised amendment to the will and must be in writing, signed and witnessed by two people. Alternatively, to make a major change, it is usually recommended to make a new will.
Issues to consider when writing a blended family will:
When a will-maker divorces a partner, it may revoke or cancel any gift made to the former spouse under will. It may also cancel their appointment as trustee, executor or guardian under the will, except as trustee for property left to any children. However, this won’t apply if the Court is satisfied that the Will maker did not intend by divorce to revoke the gift or appointment. These issues are highly complex and require specific legal advice from
Similarly, getting married usually cancels the terms of any will previously executed. As a result, it is recommended to make a new will in the event of marriage or divorce.
For more advice on estate planning for blended family wills, see our previous blog. If you’re concerned about your will, come and see our solicitors in Newcastle. We are highly experienced in estate planning, especially in complex wills and blended family wills.
Want to know what Butlers Business & Law can do to assist you in your legal matter? Talk to our experienced solicitors in Newcastle, the Hunter or Sydney! Call us on (02) 4929 7002, email us or complete an enquiry form.
