Your Questions on Wills Answered

We regularly receive questions from clients about Wills.

Why should I make a Will?

If you don’t make a Will, your assets will be distributed to your surviving relatives according to a fixed priority ranking and none of your assets can even be distributed until one of your relatives obtains authority to do so via a special (and often expensive) court application.

What are the requirements for a valid Will?

The Will must be in writing, signed by the Will maker and witnessed by two persons who must also sign the Will. If either witness is named as a beneficiary in the Will, they will loose their entitlement and the Will maker and both witnesses must be over the age of 18 and of full mental capacity.

When might a person be considered to lack sufficient mental capacity to make a Will?

The test for mental (called testamentary) capacity is pulled from a variety of past court cases. In short it must be shown that the Will maker:

  • understood what a Will does and the effect of signing it;
  • understood the nature and extent and value of his/her assets;
  • was aware of those persons who might reasonably have expected to benefit from the estate; and
  • possessed the ability to evaluate and discriminate between those more or less deserving.

Having the Will signed in the presence of a solicitor who has accepted instructions to draft the Will certainly lends significant credence to the contention that the Will maker had full testamentary capacity.

Can I leave my assets to whoever I wish?

Yes, but disinheriting a spouse, de facto spouse (of more than five years standing) or a child/stepchild may leave your estate open to legal challenge from the disinherited person. These challenges can be very expensive to sort out and may result in a Judge effectively rewriting your Will to re-inherit the disinherited person.

What impact does marriage have on a Will?

The Act of marriage triggers certain provisions in Succession Law that automatically revoke any provisions in the Will that do not favour the person who the Willmaker has married. So for example, if Jane marries Peter and at that time has an existing Will in which she leaves some assets to Peter and some assets to other persons and has also decided to appoint another person as the Executor, then Jane’s marriage to Peter will revoke everything in the Will except those provisions bequeathing assets specifically to Peter.

If you intend to get married it is therefore usually critical that you either redo your Will after the date of your marriage or, if you prefer, have your Will signed before the date of the marriage with a special clause inserted stating that it has been prepared in contemplation of that marriage.

What impact does separation and divorce have upon a Will?

Separating from your spouse has no impact on the Will whatsoever. If your spouse is the named beneficiary he/she will still inherit all of your assets unless your death was intentionally caused by that spouse. A formal divorce can be obtained one year after separation and obtaining a divorce order does have the effect of disqualifying your former spouse as a beneficiary under the Will but the Will is otherwise preserved as valid.

Does a Will cover all of my assets?

If you have an interest in a particular type of asset that is irregular you should always get specific legal advice about the asset when you make your Will. In general a Will covers all of your assets except:

(a) any money held in a Superannuation scheme – for these assets generally you need to give a specific nomination to the Trustee of the Super Fund on how that money is to be paid and this nomination stands outside your Will;

(b) jointly owned real property (ie. land and buildings) and all bank accounts – generally these assets will automatically pass to the surviving joint owner regardless of what is said in your Will about them; and

(c) assets held under a formally created Trust – generally these assets are incapable of being given away under your Will because the terms of the Trust Deed have already identified those persons who are to benefit from the Trust assets.

Can I prepare a Will in Queensland that deals with assets in some other State of Australia or foreign country?

A Will in Queensland properly prepared can deal with assets located elsewhere in Australia so long as it is first proved as valid (called Probate) in the Queensland Supreme Court. Generally the same principle applies for assets in foreign jurisdictions such as New Zealand and the United Kingdom, but it is always prudent for your local Lawyer to first confirm this to be correct with a Lawyer practicing in that foreign jurisdiction.

Michael Zande is the Principal of Zande Law, Solicitors with 25 years experience in practice. Michael and his team have had extensive experience in drafting of Wills and Administration of Deceased Estates. Please feel free to review our firm and staff profiles at www.zandelaw.com.au

The information in this article is merely a guide and is not a full explanation of the law. Zande Law cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.