The Will fundamentals

Date: Apr 05, 2009
Document Type: Newsletter

Most of the disputes about wills fall into one or the other of two categories. These are either that someone has not been provided for adequately in the will, or that some formality has not been complied with.

The first category is covered by specific laws in each state, and is a matter we shall look at in the future, and fortunately the second is one which has been made easier in recent times by changes in the law.

The basic formalities for a will are:-

  • That it be expressed to be a will,
  • That it be in writing,
  • That each page be signed by the testator (the will-maker)
  • That each page also be signed by two witnesses,
  • That all three people see each other sign.

If the testator is blind, illiterate or for some reason cannot sign, someone can sign for them, so that problem can be overcome, providing the proper wording is used, and the will read out to the testator in the presence of the witnesses.

The witnesses to any will must not be beneficiaries (people who will benefit under the will) or be related to beneficiaries. Obviously this is to ensure that the witnesses are independent. From a practical point of view it is preferable if the witnesses provide their names and addresses on the document in case they may be needed in the future.

Laws now permit courts to recognize wills which may not meet all the requirements if the court is satisfied that a document does actually represent the testator's intentions. This does not mean that any deficiencies will automatically be overcome, so the lesson - Do it right!

One common oversight is to make a bequest to a person, and not provide for what is to happen if that beneficiary does not survive the testator - there will be an asset or money not dealt with unless a proper provision is made. Another common problem can arise from dealing too much with specific assets. In one such case, a father's will left "my Ford car to my son and my Toyota to my daughter." When Dad died he had traded in his Toyota for a Mazda, so dear daughter did not get a car! Apart from items such as family heirlooms, artwork or jewellery it is usually preferable to provide for amounts of money or percentages.

Money in a superannuation does not automatically form part of your estate; its disposal will be determined by the fund Trustees or by a binding nominations. It may go into the estate, but there can be taxation consequences if the wrong course is adopted. Getting the right advice when a will is being prepared is therefore important.

Life never gets any easier, but fortunately the consequences of a formal mistake in a will can be less drastic than it used to be.

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The Basics of Estate Planning
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The Curse of the Homemade Will
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The Guardianship Tribunal
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The Problem With Internet Wills
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The Will fundamentals
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When should a will be changed?
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When should I make a will?
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Witnessing a will
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