Importance of a Will

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Importance of a Will

Significance of a WillValid WillWhat should i know about wills?
Significance of a Will
What is a will?
  • A will is the legal instrument that permits a person, the testator, to make decisions on how his estate will be managed and distributed after his death.
  • A will is a important document that requires professional advise to draft as many individuals make mistakes when taking on the task of drafting the document themselves.
  • When are the situations when you should change your will/create a will:
    • When you get married;
    • When you divorce or separate from your spouse;
    • When you buy significant assets or when you invest into goods and services with substantial value;
    • When you get involved in a new business, company or trust.
  • Marriage
    • When you marry another person your will automatically cancels, unless the will has a clause or term/condition which prohibts this when first drafted.
Poorly Drafted Will
  • Will drafting are prone to errors as many individuals take on the task of drafting the legal document themselves, as such it is imperative legal advice is sought when you wish to draft your will.
  • Terms and conditions in the will are usually ambiguous or don’t make sense which leaves more opportunity for your will to be challenged when an individual brings a family provision application against your estate.
  • If the will is poorly drafted, there are ways to rectify this error so that you are not stuck in a situation where your will may not even be valid:
    • Add a Codicil to the existing will. A Codicil are used to make minor changes to the will, however, adding a Codicil an individual must make sure that it doesn’t cause the following:
      • It should not cause confusion to that specific term/condition or the entirety of the will;
      • It should not contradict parts of the original will.
      • If the Codicil causes any of the above then the will may be deemed invalid.
    • Revoking a Will
      • A will may be revoked by way of making another valid will which clearly states that in the new will that you revoke all previous wills.
Ability to challenge a will?

Duress, Fraud and Undue Influence

  • If it is deemed that a testator who drafted a will was not acting on their own free will when writing their will, then the will may be challenged on those grounds:
    • Duress – If the Court deems that coercion was used in the form a threat or some physical/mental harm to seek a benefit than that individual who suffered may challenge the validity of that will;
    • Fraud – If an individual makes representations which are known to that person to be false and has the intention to mislead the testator into acting on those representations then the will be invalid. The following represents fraud in will matters:
      • Fraud in the inducement – occurs when the testator is made to believe in the existence of a fact which induces that person to make a will which is fundamentally different from the will they were originally going to draft.
      • Fraud in the execution of the will – occurs when the testator is induced into signing a document he believes it is something else but in fact that person is signing a will.
    • Undue Influence – Undue influence usually involves a trusted friend, relative, caregiver or confidante (for instance a lawyer) using their relationship of trust with the testator to influence how the testator writes their Will. Normally, the perpetrator is in a close relationship with the testator, and stands to gain from assisting the testator in drafting their Will.
      • If a Will is challenged on the grounds of undue influence, the Court will not automatically invalidate a Will if the benefit has been acquired merely by flattery and persuasion. To challenge a will on this ground it must be proved that the testator’s thinking must have been influenced so heavily to believe that the will is not true and accurate reflection of their intentions.

The will is ‘Grossly Unfair’

  • The Court will look behind the will and interpret the will as it has been drafted. The Court will not accept mere unfairness.
  • The will must be ‘grossly unfair’ for the Court to intervene and deem that the will may be challenged on this ground.

The will is a forgery

  • If the will has been forged, that is, the will has been signed on behalf of someone/testamentary without the permission or knowledge of that person than the Court will deem the will invalid.
  • If a Court has deemed a will to be a forgery than there are major ramifications towards the individual who deliberately mislead the Court and tried to gain an advantage via means of deception.

Testamentary Capacity 

  • A will may be challenged on the ground that at the time of drafting the will the testamentary did not have the mental capacity to understand what he/she was doing and the ramifications of writing the will or if they were even in control of their faculties.
  • Individuals who are under the age of 18 are considered to lack the necessary capacity to draft as they are deemed not to have reached the age of maturity, be of sound mind and capable understanding of what they are doing.
  • It is important to note, that mental illness or other disease does not mean that the testator lacks the requisite capacity, a person who raises this challenge must satisfy the Court that the person making the will at the time of its writing understood:
    • The value and extent of their estate;
    • What they were drafting i.e. that they were drafting a will and the effect of that will;
    • How and to whom the estate would be distributed; and
    • The consequences of including and excluding certain individuals from their will.
Valid Will
What is required for a valid will?

Simply to have a valid will, there are two basic requirements:

  1. The will must be in writing; and
  2. The will must be signed in front of two or more witnesses

 

The following elements must be adhered to in order to create a legal will:

  • A person making a will must be at least 18 years of age;
  • The person must have an intention to make the will;
  • The will has to be made voluntarily without any pressure from another person;
  • The person must understand what is in the will, and approves of its contents;
  • Two witnesses must sign, and acknowledge the will in the presence of the person making the will.

 

Section 6 of the Succession Act 2006 (NSW) provides details of how a will should be executed.

Mental Capacity

The testator must have full mental capacity at the time of the signature. In order to determine if an individual has the mental capacity it is a matter for medical authorities and expert witness evidence from individuals whose occupation is within the scope to give clarification in the area of dispute. A will made and executed by an individual whose mental capacity is in question will make the will invalid in the eyes of the law. It is important to make sure that an individual who is signing and authorising the will has the mental capacity to understand what they are signing and the ramifications of that will upon the beneficiaries.

What should i know about wills?
Things to know about writing a will
  • What happens if I die without a will?
    • If an individual dies without a will then that person will become intestate which means that that individual’s estate will be settled under the laws in your State. The estate will be transferred through a legal process called probate to the deceased’s rightful heirs.
    • As there is no will then an executor has not been named, then a judge will appoint an administrator to distribute the estate of the deceased individual. The Administrator will be most likely an impartial third party who will be bound by probate laws.
  • How do i draft a will?
    • There is no legal requirement that a will be drafted by a Solicitor. An individual is within their rights to draft and have a valid will. However, it is important to note that it is best to seek legal advise in drafting a will as the consequences of a poorly drafted will be that the will may be deemed invalid or easily challenged. State Lawyers networks and is able to review a will and advise of the consequences of certain terms and conditions that may be present within that will.
  • When should i update my will?
    • When you get married;
    • When you divorce or separate from your spouse;
    • When you buy significant assets or when you invest into goods and services with substantial value;
    • When you get involved in a new business, company or trust.
  • Do I need an Executor?
    • It is important to appoint an executor to distribute your estate. It can be a family member, spouse or any other trusted friend/legal attorney.
    • It is crucial that in your will you empower your executor to pay any bills and deal with debt collectors that may not be outlined in your will.
  • What should my will cover?
    • If you have children, your will should name a guardian who will take care of your children.
    • The will must specify what will happen to your goods and name an executor to carry out the instructions of the will.
    • How your goods should be distributed and to whom.
  • Where should I keep a will?
    • An individual should keep their will in a safe and secure location such as bank safe.
    • A Solicitor may keep a copy of your will in the situation where the original will is destroyed.
    • Therefore, it is imperative that a will is kept safe and that you do not lose your copy of the will as it may cause complications regarding individuals seeking entitlement under a intestate arrangement.