Very few people plan to die without leaving a valid Will, however the sad reality is that some do.  Not only is it possible to be hit by the proverbial bus at any time and die, it is also possible that you won’t die and may be left without the testamentary capacity to make a Will.

Even if you do make a Will it is possible that it can be challenged in the courts.  A challenger could question whether you understood the matters to be considered in making a Will, the Will might not meet the required formalities or a relative may simply not be happy with what they have or have not been given. 

In most  states, a Will is revoked upon marriage and in some it is revoked by a divorce – so if you have made a Will prior to being married or divorced it will most likely not be valid after that event unless the will expressly provides that it was made in contemplation of that event and is not to be revoked. 

If someone dies without leaving a valid Will, they are deemed intestate and the estate will be divided up according to a formula prescribed in legislation.  Each state and territory has its own legislation and formula for distribution.  The prescribed formula is inflexible and worse - in many states including WA, it has not been updated for decades!  As a result of this, the monetary amounts in the legislation can be inadequate by today’s standards.  An example of this under the WA legislation is where a married person with two children dies, the widowed spouse would receive $50,000 and one third of the assets – the two children would also get one third of the estate each.  So the widowed spouse only receives $50,000 more than the children from the estate!

The bottom line to all of this is, if you have not yet made a Will, there’s no time like the present. 

If you have made a Will, make sure it is a valid one and that it reflects your current wishes. 

As we are entering into the end of financial year phase why not put it on your EoFY checklist?  In fact, how about putting it on top of the list? If you think about it, we all seem to scramble around madly at the end of the financial year to minimise our tax bill for the year, yet many of us have not made provision for something much more significant.

Having put the case for having a Will, it is also important that if you go to the effort of deciding to make a Will, that it is a valid Will.  There are various reasons why a Will can fail.  It can fail either partially or totally.  For our Platinum Members, reasons for failure include:

Rather than using a homemade Will kit it is best to get more specialised advice to ensure your Will is as water-tight as it can be.

It is important to note that no one can guarantee that your Will won’t be challenged.  It is your right to dispose of the assets in your estate according to your preferences, however it is subject to one big BUT.  This is that each state has legislation which allows for certain categories of people to challenge a Will if the testator has not made adequate provision for that person in the Will.  In order to be successful the challenger will need to establish they meet the criteria and a court then has the discretion to alter a person’s Will.  Platinum Members can read on about two relevant examples, one of which went all the way to the High Court.

Whilst having a professionally drafted Will won’t necessarily preclude a successful challenge, it does ensure that you consider all of the important issues that you need to consider in making a Will. 

At Law Central we have developed a series of Wills which you can build and customise for yourself and ensure you consider all of the matters you need to in order to have a valid Will.  We have the following Wills:

• Will – Married Or Defacto With Children
• Will – Married Or Defacto No Children
• Will – Single With Children
• Will – Single No Children

If your situation is a complex one, including having interests in multiple companies or trusts, or if you think someone may challenge it, if you are not sure if your current Will covers everything it should or if you have not had it reviewed for many years, it is advisable that you make an appointment to see an Estate Planning specialist.  At Civic Legal we have a team of professionals specialising in Estate Planning, including drafting Wills which take into account issues relating to Tax, Duty, Trusts, Superannuation and other often forgotten (yet important) issues.

Build Your Own Documents Online

• Will – Married Or Defacto With Children
• Will – Married Or Defacto No Children
• Will – Single With Children
• Will – Single No Children

Bulletin Bookshelf

• Writing your own Will – What could go wrong?
• Dying without a Will - Intestacy
• Estate Planning 301 - Accountant and adviser's checklist
• Estate Planning 201 - A Will is only half the battle - Failing to consider Business Structures
• Estate Planning 101 – what do accountants need to know?
• Defacto misses out to distant brats