Making a Will

What is a Will?

A Will is a legal document that sets out a person’s wishes as to how their property is to be distributed after their death. The Will must be in the proper form, and be executed in the manner prescribed by law.

Without a valid Will, you die intestate. That means that your assets will be passed down according to legislation, and not necessarily in the way that you intended. If the Will does not deal with all of your assets, there will be a partial intestacy.

Your Will must have the following:

  • At least one Executor, who is willing and able to carry out functions of being the Executor of your estate;
  • At least one Beneficiary (the person or charity who will receive your gift), who is likely to be alive at the date of your death; and
  • Make provision for the distribution of all of your assets.

It is advisable to select a back-up option for the Executor, in case the person you chose is unwilling, or unable to act in that role at the time of your death. When preparing a Will, it is important that your circumstances are fully covered in the drafting of the Will. We can assist you in ensuring that your Will is suitable for your circumstances.

Some common matters that are contained in a Will:

  • Nominating a guardian for infant children (that is, for children under the age of 18) and providing arrangements as to their education, maintenance and welfare.
  • Setting out your funeral arrangements.
  • Dealing with the issue of distribution of assets where your partner has children from a different relationship.
  • Making provision for Beneficiaries through the creation of a trust.
  • Making provision for your pets after your death.
  • Wishing to give a gift to a charity.

The following events automatically revoke a Will:

  • You marry or divorce (unless the Will was made in contemplation of these events).
  • You create a later Will.

A Will may be found to be invalid if:

  • the Testator did not have legal capacity at the time of making the Will,
  • it was not executed in the proper manner, or
  • there was fraud or duress on the part of the Testator,
  • there is a later Will.

If you die intestate (without a valid Will), then your assets will pass according to legislation, and not as you intended. We are happy to provide you with advice about your existing Will, and we can advise you on whether you need to update or replace your Will.

You can only give away property that is owned by you. You cannot give away an asset that is:

  • owned by you and another party as joint tenants (for example, a property)
  • owned by your company or family trust
  • superannuation and life insurance – where you have made a binding death nomination to a nominated person, then it will go to that person, and will not form part of your estate

We can help you navigate this complex area, so that you can achieve the desired outcome that you want.

After you die, your Executor must complete certain administrative tasks in order to be able to disperse your assets. If you have a Will, then your Executor may need to apply for a Grant of Probate. If you die without a valid Will, your Executor may need to apply for Letters of Administration.

A ‘Grant of Probate’, and ‘Letters of Administration’, are both applications made to the Court to obtain a certificate authorising the Applicant to be the representative of the Testator.

In both scenarios, the Court will issue a certificate to your Executor, allowing your Executor to deal with your assets. Whether a Grant of Probate or Letters of Administration will be required, will depend on the type of asset that you have. The requirements for a transfer of an asset will depend on the nature of the asset you wish to transfer. Different bodies regulate the transfer of assets. For example – Landgate regulates the transfer of property in Western Australia. A bank regulates the transfer of money. Each regulating body has its own rules.

Mossenson’s can advise to whether an application needs to be made to the Court. Once the Executor or Administer is authorised to act, the Executor/Administrator brings in the assets of the estate, pays the debts, and distributes the assets according to the Will, or as required by law, if there is no Will.

A Will can be challenged in Court, and either partially or completely revoked. Some of the most common grounds for challenging a Will are:

  • A beneficiary was not adequately provided for by the Inheritance (Family and Dependants Provision) Act 1972;
  • The testator did not have legal capacity at the time of making the Will;
  • The Will failed to comply with the formalities required under law;
  • The Will was made under duress (this means that the the Will was not freely made, without coercion); and
  • Fraud.

We can provide advice as to the likelihood of a challenge succeeding; we can act for you in Court; we can negotiate to settle; and provide an estimate as to the quantum of damages that a Court is likely to grant, should the challenge be successful.

We offer the service of storage at no cost to you.