Dying without a legal Will can lead to unwanted disputes between your family and loved ones. Losing a loved one is already emotionally taxing and stressful without the added pressure of trying to determine how a person would like their assets distributed.
A Will is a legal document which outlines how you want your assets to be distributed when you die. The process of preparing a Will allows you to appoint an executor whose job is to manage your estate after your death. The executor can be a family member, friend, or professional such as a lawyer, accountant or trustee company. Any person who is over the age of 18 can make a Will, unless they do not have the mental capacity, in which case a Will can be made on their behalf with approval by the court
If there is no valid Will, the Administration and Probate Act 1958 (Vic) sets out rules (of intestacy) for how an estate should be distributed. It is important to have a valid Will, as the rules of intestacy may not always align with your wishes of distribution and could result in loved ones having less financial protection than you desire.
When is it necessary to revise a Will?
It is important that a Will reflects your current circumstances both domestically and financially. As a general rule, you should revise your Will every five years or as life circumstances change. Significant events including marriage, the birth of a child, separation and/or the death of a family member should trigger a revision of your Will. The reason your Will needs to reflect your current circumstances is because major life events may alter how you would like your estate distributed after your death.
For example, a Will made prior to marriage is not valid following the marriage and the rules of intestacy may not entitle siblings and/or other family members to the desired distribution of your assets. Separation from a spouse (before divorce) does not affect a Will’s operation, meaning your ex-partner could still receive a portion of your assets instead of other loved ones upon your death. Further, after divorce and property separation are completed, you must draw up a new Will because any Will you had during the marriage may be set aside if it refers to your former spouse.
A valid and up to date Will is crucial in ensuring your loved ones receive the financial and domestic protection you desire for them. A Will may also be necessary to ensure your children are properly cared for after your death. This is why your Will should be revised upon the birth of a child as it may be necessary to appoint a guardian and review the appointed executor.
Contesting a Will?
Wills can be complicated and may not achieve the desired goal if they are not drawn up correctly by a lawyer. A Will can be contested if it was incorrectly executed or tampered with, if it was executed under pressure from others, if the Will maker was incapable of making a Will, if the meaning of the Will is unclear and if there are insufficient provisions for a spouse, children or other family members.
To ensure your Will achieves your desired outcome, it is crucial to contact a Will specialist lawyer or a Wills and estates legal practitioner to draw it up for you. A lawyer is an objective party that can give an unbiased opinion on how you should distribute your assets. A lawyer drawn Will ensures the Will complies with all legal requirements and that your wishes are clearly expressed and achieved.
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.