Results from a survey conducted by TellThem4Me® in January 2021 revealed that 54% of respondents did not have a Will.
What is a Will?
A Will is a legal document which records your instructions for the distribution of your assets or your ‘Estate’ to a Beneficiary (a person who gains something from your Will) when you die. Assets in this context, refers to assets held solely in the Testator’s name (not joint assets). If you have children under 18, you may also include your wishes regarding care arrangements for them when you are gone.
Is there any difference between a Last Will & a Testament?
In essence they are one and the same thing. A Last Will refers to the most recent Will you executed (or completed and signed) before your death. Your Last Will also cancels any previous Wills you made before the Last Will.
In the ‘olden’ days (18th and 19th Centuries) a Will traditionally detailed your instructions for distributing any real estate you owned including land and anything built on it. A Testament traditionally included your instructions for distributing your personal property to beneficiaries (or recipients). Personal property included things like your money, jewellery, and precious items.
Why were Last Will & Testament separate documents?
The Will and the Testament were separate documents mainly because women were not permitted to own any land or property in their own right and / or without their husband’s approval and so didn’t require a Will. Instead, women prepared a Testament which expressed their instructions with regards to the distribution of their personal possessions.
As time passed, women could own land themselves and so there was no longer any requirement to have two separate documents, so we now have a single Last Will & Testament.
Who should have a Will?
Everyone over 18 years old should have a Will regardless of their economic, marital, health or personal status. A person making a Will is known as a Testator.
Why should you have a Will?
You should have a Will so that you minimise the stress for your loved ones and ensure that your assets or estate and personal belongings are distributed as you would like them to be.
In writing your Will, you have greater flexibility and choice in how you want your Estate to be distributed letting you ‘have your say’ in what you want for a time when you can’t. You can write explicit instructions in your Will which not only provide for your loved ones but also provide for friends or maybe even a charity. It also means that as a Testators you can appoint someone you trust to be your Executor (the person who will carry out the wishes of the deceased person based on the instructions contained within their Will) so that their assets or estate are distributed to the intended beneficiaries.
What should be included in a Will?
As a minimum you will find the following:
- Your full name and address
- The date
- The full name(s) and address(es) of the Executor(s)
- An attestation (confirmation) clause stating that you (the Testator) signed the Will in the presence of two or more witnesses and that the Witnesses signed in your presence
- Distribution of your assets and personal belongings
- Any charitable donations you would like to be made
- Instructions for any trusts you may have or business operations
- You can also include appointment of care for your children (if they are minors) – this is not strictly legally binding, but an Executor would usually carry this out
How do I make a Will?
You can ask a legal expert like a lawyer to prepare one, a Public Trustee or you can do it yourself either online or with a DIY kit
How much does it cost to make one?
The price for a Will ranges from zero to hundreds of your hard-earned coins. The cost is largely dependent upon where you shop and how complex your individual circumstances are. Some paid services offer fixed fees whilst others charge a fee relative to the complexity of the Will and the time spent in preparing it.
Are there any free services?
Yes, there are free services available, but it is always best to check the validity of a zero cost Will with a legal professional, just in case. Remember that if there are errors or omissions with your Will, it may be invalid if it is not done correctly.
Can I use a DIY Will?
Yes, you can use a free or paid for DIY Will. There are many around, but their validity cannot be guaranteed. Always get a DIY Will checked – just in case.
When shouldn’t I use a DIY or free service?
Some personal circumstances are considered to be complex, and a Will prepared by a legal professional is the safest bet from the start. Complex circumstances can include:
- When a Testator is unsure or has questions that cannot be answered before preparing a DIY Will
- Where a Beneficiary has special needs
- When a Testator wishes to leave unequal shares than what a Beneficiary may expect to receive
- When you wish to exclude someone, who would usually be a Beneficiary
- Where there are other family complexities including stepfamilies or family disputes
- Where the Testator has been married and / or divorced previously
- Where the Testator has stepchildren
- When a Testator has as self-managed super fund or trust
- When a Testator also has business interests
- When the value of the estate is substantial and / or includes multiple assets such as property, cars, boats, caravans, bikes, and investments
What happens if I have fallen out with someone and don’t want to include them in the Will?
If someone would usually be a Beneficiary (like a spouse, partner, child etc) and you do not wish to bequeath (give or gift) them anything. Then you should seek legal advice. This is possible to do, however the reason for your decision should be recorded and stored somewhere safe in case any claims against your estate are made. In this instance, it is better to ask a professional to help you with your Will.
Do I have to write a new Will if I want to make some minor changes???
It is always better to make a new Will if anything changes because if any changes are performed incorrectly, then this may make things harder for your loved ones and leave your Will invalid. To make minor changes, amendments or alterations to an existing Will, a Testator needs to prepare a legal document called a codicil.
A codicil is a short document (one or two pages) and like the original Will, must be signed and executed in front of witnesses in the same way. The codicil is then stored with the Will and any other codicils (as you can have more than one) but must not be attached in any way (including staples, bulldog, or paper clips) as this may make the document look like it has been tampered with and so will not be valid.
How reliable are codicils?
Codicils are not always valid due to the following problems that may occur:
- You may make a mistake with dates or omit the date completely
- You may not explain the change accurately which may lead to confusion
- The codicil may become separated from the Will, overlooked, or forgotten by your Executor (especially if they haven’t been told about it)
Codicils can be done quickly and are cost effective if they are done correctly. If there are any inconsistencies and court proceedings are necessary, then the cost of this can outweigh the cost of making a new Will.
“It’s better to be safe than sorry” and so the best way of making changes is to write a new Will.
Where should I store it?
- Keep your will in a safe place and make sure your Executor(s) knows where that is
- Provide details of your Will in your ICE File and / or TellThem4Me® account. In doing so, your Nominees will also know exact details of where your Will is stored and any other detail you allow via your account settings
This is general information only and does not constitute specific legal advice.