Wills

What is a Will?

A Will is a written declaration of a person's intention as to arrangements to take effect after their death.  Those arrangements may include details about burial and always include directions about the distribution of a person's estate following death.

Why do I Need a Will?

It is of the utmost importance for every adult to have a properly prepared and up to date Will.  Some people find it difficult to deal with this issue because they don't wish to consider the implications of their death, whether premature or at an old age.  Nonetheless to fail to leave a valid Will usually results in significant complications for the surviving next of kin in dealing with the deceased's estate.  It also has the effect of increasing costs associated with the administration of the deceased's estate.  More importantly, however, it means that the deceased has not had any role in determining how they want their estate divided.  If there is no Will  the estate is distributed among the deceased's next of kin in accordance with the Succession Act, which imposes an arbitrary and often unfair result on the deceased's family.

I Want to Prepare a Will - What do I need to Consider?

In considering instructions to be given for the preparation of a Will, the following should be taken into account:-

1. The appointment of an executor or executors.  The executor is the person appointed to carry out your wishes as expressed in the Will and is usually your next of kin (such as spouse or adult children), but may be a close friend.  There may be two or more executors, and you may appoint alternate executors (in the event that the first person appointed dies).
2. If there is no suitable close relative or friend whom you might appoint as executor, an appointment can be made to the NSW Trustee & Guardian, or a private solicitor.  Additional costs will be incurred by the estate in relation to such an appointment, and it is not usually the preferable course.
3. Consideration also needs to be given to the appointment of a guardian for infant children.
4. In determining the gifts which you wish to make, usually there are a number of possible classes of beneficiaries such as spouse/de facto spouse, children, siblings, and others, that should be considered.  A common way for a husband or wife to deal with their estate is to simply leave the estate to their spouse and appoint their spouse as executor.  In the event of the spouse predeceasing, then one or more adult children might be appointed as executors and the estate divided among the children (usually in equal shares) with the share of any child who predeceases, going to that child's children (the deceased's grandchildren).
5. Provision may be made in the Will for the use of part of a child's inheritance (or the income earned on their share) for their benefit, such as payment of education expenses, whilst they are minors.
6. When considering the construction of a Will, thought must also be given to any former spouse and arrangements for your superannuation fund.  A Will must be drafted so far as is possible to avoid it being contested.

The preparation of a will generally involves two appointments, the first to take instructions and discuss the terms of the Will, and the second to ensure that it is validly executed (signed).