Why Everyone Needs a Will

What is a Will

A Will is a legal document that commences operation upon your death.  A Will appoints a person (or persons, or an organisation) who are known as the executor/s to call in the assets of your estate, and then distribute these to your beneficiaries in accordance with your directions.

Why you need a Will- avoiding intestacy

Where a person dies without leaving a Will, a person, (usually the next of kin) makes an application to the Supreme Court of Victoria to call in the estate assets and then distribute these in accordance with the intestacy provisions in the Administration and Probate Act (Victoria) 1958.

The rules of intestacy changed on 1 November 2017, and now provide that where a person dies leaving a spouse (or partner) and children of that same spouse, the spouse inherits the entire estate and no portion of the estate will be reserved for the children.  This leaves those children at risk of not being properly provided for should the spouse re-marry or re-partner and not provide for them as you would have wished in their estate planning.

Intestacy can also apply (in full or partially) where a person has a Will that was not properly drafted, executed or did not consider all of the assets of the estate.

Proper estate planning ensures that you have control over:

1. Who benefits from your estate and in what proportions;

2. Who administers your estate;

3. Who will act as guardian of your infant children;

4. When your infant children will receive their inheritance;

5. Providing protections to beneficiaries who are at risk of wasting or losing their inheritance;

6. Providing beneficiaries their inheritance in the most tax-effective manner; and

7. Minimising the stress and cost of dealing with and administering your estate.

When you should get a Will or update an existing one

We encourage all of our clients to have up-to-date Wills.  However, having an up-to-date Will should be a priority for people going through a major life event; having children, getting married or entering into a domestic partnership, getting divorced or separated, upon the death of a parent, financially supporting or accommodating another adult, buying or selling a business, house or another significant asset.

Estate disputes

Unfortunately, no matter how well thought out and drafted a Will may be, nothing can stop a claim being made on an estate by an eligible claimant.  All estate disputes (in Victoria) fall under the jurisdiction of the Supreme Court of Victoria, no matter the value of the estate.  This means that any negotiations, mediation and settlement of such a dispute is extremely costly and can quite often reduce the value of an estate significantly.  An estate dispute will also add significant delays to your beneficiaries receiving their inheritance.

Having a Will properly drafted by a solicitor who has taken instructions in person, and met with you again to witness the execution of these documents can add a layer of clarity to your instructions and circumstances.  For example, the solicitor may be able to provide their view based on their conferences with the testator on the following matters:

1. That testator was of sound mind and had the capacity to make the Will;

2. The competing interests of beneficiaries (or eligible claimants) that the testator considered when drafting their Will;

3. Where a beneficiary (or eligible claimant) has not been provided for by the testator, further explanation as to why the testator did not do so;

4. What the testator considered to make up their estate (including monies loaned to them and by them).

A Will drafted by a solicitor should be in clear language and give unambiguous direction to the executor and consider all matters relevant to the testator.  In doing so, this may prevent or deter an estate dispute in the first case, which is the best-case scenario!

What you should do now?

Make an appointment now by:

1. Emailing us at: estateplanning@mertonlawyers.com.au

2. Calling us on: (03) 9645 9500

We offer fixed fee, competitive prices for estate planning, contact us for a quote or a no obligation initial discussion about how we can assist you.