Wills & Succession

Introduction to Wills & Succession Law

Wills and succession law is a relevant area of law for all individuals. It governs what happens to property when you die. A valid will ensures an orderly and effective transfer of your personal and business assets to your nominated recipients after you die.

When people die without a will it can be difficult to know what to do with their property and the costs of administering the estate may be high. It can also open the floodgates to claims by family members and others who you do not desire to inherit your assets. 

Experiencing a death in the family or among your friends is upsetting and stressful. A properly drafted will simplifies matters for your family after you pass. Knowing that your family will be provided for if anything happens to you can also be a weight off your shoulders even if this seems unlikely or only a distant consideration. It can provide you with peace of mind. 

When making a will there are a number of legal and personal matters that you need to consider. Some of these may not be immediately obvious to you. If you have complex family relationships and a large estate matters can be particularly difficult to arrange without the help of a lawyer. This will depend on your individual situation. 

Everyone should be encouraged to consider what will happen to their personal estate after death. It is equally important to consider the wellbeing of family members and others for whom you are responsible. Understanding how wills and succession law works can help you make the initial steps towards achieving peace of mind about your future and that of your family.

  • 1. Overview

    When a person dies certain tasks must be attended to for example: 

    • if the deceased had dependants then arrangements must be made for their welfare at least in the short term; 
    • funeral arrangements must be made; and 
    • the deceased’s property must be gathered in and any outstanding debts paid. 

    A person’s estate consists of the property (assets) they owned at the date of their death less any debts they owed. The estate assets may be real property or in the form of money owed to the estate. The term real property refers to land, buildings and personalty (personal property) such as:

    • motor vehicles;
    • furniture; and 
    • personal effects such as clothing and jewellery. 

    The final task is to distribute the estate to the people that the deceased nominated as beneficiaries (the people who inherit gifts from the deceased). This may be done in the form of cash, a percentage of the total estate or other specific gifts from the estate such as:

    • your Rolex watch;
    • your antique chairs; or 
    • your unit on the Gold Coast.

    A will is a legal document in which a person nominates:

    • a legal personal representative to act on their behalf after their death; and 
    • the people to whom their property is to be given. 

    The person making the will is described as the testator. The person nominated to organise and distribute your estate after your death is called the executor. Other instructions that may be included in a will are:

    • guardianship details for dependent children;
    • creation of trusts and life tenancies;
    • appointment of trustees for trusts; and
    • any other matter that is important to you.

    An executor is usually chosen from the testator’s family or group of friends but any person who is over 18 years old, trustworthy and dependable may be nominated to be an executor. Some testators decide to appoint an organisation to act as their executor such as a private trustee company or the public trustee in their state or territory.


    It is no exaggeration to say that a will is one of the most important documents that a person ever creates and yet it has been estimated that up to half the population does not have a valid will or any will at all. This begs the question why anyone would not want to have a say about who should have responsibility for any dependent children or where their hard-earned property goes after their death.


    The reasons people do not make a will are many and varied. Some people do not understand the importance of a will or do not know what a will is. Others believe they have plenty of time to get their affairs in order and die before they have the opportunity to make one. For others the thought of writing a will makes them feel uncomfortable and superstitious. The reality is that death comes to all of us eventually.


    A will may be as general or specific as you wish. For instance you may wish to leave specific instructions about the disposal of your body. These instructions may include your preferred location of disposal and the method of disposal for example:

    • burial;
    • cremation; or 
    • donation to scientific research.

    Alternatively many people leave the decision about disposal of their body to their executor. The will may include specific gifts to individuals or simply leave the residual estate (the amount remaining after debts and funeral expenses have been paid) in equal shares to their beneficiaries.


    This Legal Guide on Wills and Succession provides private individuals with information about making a will and implications of dying without a valid will. Before making important decisions it is advisable to obtain legal advice specific to your situation. 



    Warning: Information provided on this website is for general guidance. It is not legal advice. Laws and procedures referred to may change and differ between states, territories and nationally. There may also be important exceptions or qualifications. Only a lawyer providing formal legal advice can assess your particular circumstances to determine how the law will apply.


  • 2. How Newcastle Legal Can Help

    Anyone can write a will and there is a range of commercially available ‘will kits’ on the market. There is also no prescribed format for a will so it may be written in any way. However there are many traps for people who are not familiar with writing wills. Will kits do not cater well for people who need more than a basic will. These include people with dependent children, complicated family arrangements or complex financial affairs.


    A kit may seem like a cost effective alternative but if you make a mistake it may cost a lot more to administer your estate after your death. Newcastle Legal can help you by ensuring that your will is written clearly and that all the legal rules are followed. 


    A will that is not written and signed properly may be rendered invalid or it may cause confusion resulting in unintended consequences. Newcastle Legal can help you by:

    • giving you the best advice about your will and your estate because they get to know you and your requirements when they take your instructions;
    • ensuring the will is written clearly and unambiguously to avoid confusion;
    • ensuring the will properly revokes any previous testamentary documents you have made;
    • ensuring that the will is not accidentally revoked in the future;
    • giving advice about the best choice of executor as well as a substitute executor or executors;
    • advising you in relation to guardianship matters for any dependent children;
    • safeguarding against partial intestacy, lapse or loss of gifts;
    • advising you about assets which do not form part of your estate for example your superannuation and jointly owned property;
    • advising you about beneficiaries and substitute beneficiaries to avoid a partial intestacy which results in loss of gifts;
    • advising you about testamentary trusts, appointment of suitable trustees and the trustee’s powers;
    • ensuring executors, beneficiaries and gifts are described completely and accurately;
    • ensuring that your will properly safeguards your surviving partner’s interests and future needs;
    • safeguarding the interests of children from a previous relationship;
    • advising you about the best way of avoiding a family provision claim against your estate after you die;
    • protecting your interests by ensuring that you have the requisite capacity and understanding to make a new will;
    • ensuring that you have not been unduly pressured into making your will;
    • ensuring that your will is signed and witnessed correctly;
    • placing your signed will in safekeeping so it is not lost or damaged; and
    • advising you about other important documents that you may need in addition to your will for example an enduring power of attorney or enduring guardianship.

    It is important to note that a will is only part of the estate planning process. Newcastle Legal can also advise you about the best way to structure your property while you are still alive in order to protect it from claims against your estate. Newcastle Legal can work with financial planners and accountants to achieve the highest level of protection for your property.

  • 3. Why Make a Will?
    • A good reason for making a will is to avoid unnecessary expense. When a person dies without a valid will administration of their estate is more complicated and expensive. 
    • In this situation letters of administration must be applied for. This involves more work than the standard application for probate which occurs when a person dies with a valid will.
    • Importantly by making a will you are being kind to your family. When a person dies it is naturally a very upsetting time for their surviving family. By organising your affairs as much as possible before you die you will be saving your family from additional pain and heartache.
    • Even a basic will is better than no will at all. By making a will you get the opportunity to appoint the person you want to be your executor and to let them know what you would like to happen with your property.

  • 4. Dying Without a Will
    • If you do not make a will your estate will be administered according to what are referred to as the “rules of intestacy”. The rules of intestacy are followed when a person dies without a valid will (dies intestate). 
    • The intestacy rules prescribe who will inherit your property and it may not be the people you would have chosen for example:
    • a spouse from whom you had recently separated; or
    • estranged children. 
    • This may also lead to claims against your estate at great financial and emotional expense to everyone. One example of this is family provision claims. Fighting over a deceased relative’s estate can irreparably damage family relationships. See out topic on Family Provision Law for more information.
    • Generally speaking the intestacy rules require your estate to be distributed in the following order: 
    • your surviving current spouse;
    • your previous spouse and any children of your current or previous relationship(s);
    • your parents;
    • your siblings; 
    • your ‘lineal’ relative such as grandparents, aunts and uncles or cousins; and
    • the state. 
    • If you do not make a will the court will appoint someone to act as your administrator. 
    • This is generally a person who has an interest in the estate such as a beneficiary. 
    • However this may be a person you would not want to be your administrator because you believe that they are not responsible enough or you think they are capable of acting unfairly towards other beneficiaries.
    • If you die without a will and have no known relatives who are entitled to inherit under the intestacy rules your estate will be administered ‘bona vacantia.’ 
    • This means that your property will be given to the government. 
    • It does not matter that you have close friends that you would want your property to go to. The rules of intestacy do not recognise non-family members as potential beneficiaries.

  • 5. Rules For A Valid Will
    • There are a few rules that apply to making a will. If they are not followed the will may be rendered invalid or may result in a partial intestacy. The rules are:
    • the testator must be at least 18 years old;
    • the will must be in writing;
    • the testator’s signature must be witnessed by at least two witnesses who are not legally blind; and 
    • the witnesses must not be beneficiaries under the will or married to a beneficiary under the will.
    • The rules do not say what the will needs to be written on and there have been cases where wills have been written on doors, wallpaper and furniture. However it is practical to write the will on standard paper because there is less likelihood of it being misplaced or destroyed.
    • A witness to a will who is also a beneficiary is known as an ‘interested witness.’ This also applies to a witness who is married to a beneficiary under the will. 
    • The practical effect of this rule is that the beneficiary will usually forfeit their gift under the will.
    • A witness to a will cannot be legally blind because the law states that the witness must actually see the testator signing the will.

  • 6. Clauses in a Will
    • There are no rules that dictate how a will must be set out. However most wills set out in a similar way as follows:
    • a paragraph at the beginning identifies the testator including their address and occupation at the time of making the will;
    • there is a clause that revokes all previous testamentary acts including: 
    • wills;
    • codicils; and
    • will-like statements;
    • a clause appoints at least one executor;
    • clauses that allocate gifts to named beneficiaries;
    • a clause containing the executor’s powers to deal with the testator’s property; and
    • a signing clause where the testator signs the will and has their signature witnessed by at least two witnesses. This clause should document the names and addresses of each of the witnesses for the purpose of proving the will for probate. Names and addresses should be printed clearly and legibly (able to be read).

  • 7. Testamentary Trusts
    • A testamentary trust is a trust that is created by a will as opposed to a trust that is created in life by a trust deed. A testamentary trust’s property comes from the testator’s estate. 
    • The trust is usually set up for the purpose of providing for dependent children such as minors or disabled children who are financially dependent on the testator or a surviving spouse. 
    • A will that creates a testamentary trust will include the following:
    • appointment of at least one trustee to manage the trust’s property or the rules for appointment of a trustee;
    • a list of the property from the estate that is to become trust property;
    • instructions on how trust property it is to be invested and its purpose;
    • a ‘preservation age’ (the age at which the beneficiary or beneficiaries may take their benefit from the trust);
    • the powers of the trustee and beneficiary; and
    • any other rules and restrictions that the testator may wish to place on the trust.

  • 8. Wills & Family Provision
    • A family provision claim is a claim for a share or larger share of a deceased’s estate. 
    • The claim may be for a share of the estate where the person claiming has not been left a gift at all or it may be a claim for a greater share where they have been left less than they believe they should have.
    • When making a will it is important that the testator considers the fairness of their gifts.
    • For example if a testator has two children and they wish to leave gifts of equal value to their children then at the estate planning phase the testator must look ahead to the value of the particular gifts. 
    • One gift may increase in value faster than the other gift. 
    • This would mean that one child will receive a gift under the will that is worth more than the other child’s gift thereby creating inequity and the potential for a family provision claim by the child who receives less from the estate.
    • Another situation that commonly results in a family provision claim is where a specific gift to a beneficiary is sold before the testator dies. 
    • In this situation the beneficiary of that gift will not receive any gift at all because their gift will have ‘adeemed.' This means that the gift is treated as though it never existed because it is not part of the testator’s estate at the date of their death.
    • A testator may decide not to leave a gift to someone. This may be done for any number of reasons for example:
    • the testator gave money to the person in their lifetime;
    • they decide not to leave a gift or to leave a reduced gift to an estranged child; or
    • they wish to reward a child who assisted and supported them in their later years by leaving a larger gift to that child.
    • Where inequity exists it is difficult to protect the estate from a family provision claim. 
    • However it may be avoided if the testator explains their reasons for leaving certain gifts to the different beneficiaries and those who are excluded as a beneficiary under the will. 
    • It is possible for a testator to include their reasons in the will. This is not always recommended as the original will is sent to the court for the purpose of probate after the testator dies. 
    • If a family provision claim is made the contents of the will may become public knowledge.
    • A better practice is to document the testator’s reasons in a separate document that may be included with the will in the form of a statement by the testator for example:
    • informal statement;
    • statutory declaration; 
    • letter; or 
    • affidavit.
    • In the event of a family provision claim side documents are not binding on the court however they show the court that the testator considered the impact of their will and is evidence of the testator’s reasons for excluding a beneficiary.

  • 9. Challenging a Will
    • A testator must have sound mind, memory and understanding in order to make a will. 
    • In relation to making a will this is known as having testamentary capacity. 
    • Capacity may relate to age. For example a testator must be over 18 years old.
    • A testator who has a cognitive impairment may be vulnerable to the influence of others. If a will is made under the influence of another person this may invalidate the will.
    • There is no definitive meaning of capacity but it is generally accepted that the testator must be able to understand:
    • what a will does;
    • the impact of their decisions; and 
    • the people who may have a claim on their estate.
    • Importantly a testator may have capacity in some areas of their life but not in others. For example a person may have an intellectual disability that prevents them from caring for themselves independently but may still have the requisite capacity to make a will. 
    • The testator may also have the requisite capacity on some days but not others for example in the case of a person on medication that affects their cognitive processes. 
    • If there is any doubt about a testator’s mental capacity it is essential that their medical practitioner be consulted so that they may have their capacity independently assessed. 
    • The doctor must be able to verify that the testator has capacity to manage their own affairs.
    • A lawyer is not qualified to make a medical assessment of a person’s mental capacity. 
    • However if there are doubts about a testator’s capacity a lawyer may make a preliminary assessment. 
    • They would certainly need to assess the testator and document their findings on the day the will is signed. This is done by the lawyer asking probing questions that are designed to evaluate a testator’s memory and understanding.

  • 10. What is Probate?
    • Probate is the process whereby a testator’s will is ‘proven’ and their nominated executors become their legal personal representatives. 
    • Once probate is granted the executors have the legal right to deal with the deceased’s property.
    • Where the estate is large or it contains real property the executors will not be able to deal with the deceased’s assets until probate is granted. The grant of probate document stamped by the court is evidence that the executors have the legal right to deal with the deceased’s property.
    • Some estates may be administered without applying for probate. Where the estate assets do not consist of real property or the assets of the estate are small it is not necessary to apply for probate.
    • Before the court will grant probate to the executors the will must be proven. 
    • This means that the executors provide evidence in the form of an affidavit stating that they believe that the will that they are submitting to the court with the application is the final and valid will of the testator. Their affidavit states their reasons for believing this. 
    • Where there is doubt about the validity of the will the people who witnessed the testator’s signature on the will may be required to sign an affidavit stating that they saw the testator sign the will and they believe it is genuine.

FAQ

  • Can anyone make a will?
    • Yes anyone can make a will but the following applies:
    • they must have legal capacity and good memory and understanding; and
    • they must be over 18 years old.
    • Good memory and understanding means among other things that they must not suffering from dementia or a cognitive impairment that affects their judgement and understanding.

  • What is a trust and how does it differ from a testamentary trust?
    • A trust could be described as an obligation to another person or people. It is created by a trust deed during a person’s lifetime. It usually involves assets being set aside for the benefit of others. 
    • A trust consists of at least one trustee and at least one beneficiary (a person who receives a benefit from the trust). 
    • The trustee is the legal owner of the trust’s property and they are legally obliged to hold the property for the benefit of all beneficiaries according to the terms of the trust deed. 
    • On the other hand a testamentary trust is created by a will and does not come into effect until the date of death. A testamentary trust is typically set up for the benefit of minor or disabled children of the testator or a surviving spouse.

  • Once I have made my will how often does it need to be updated?
    • The general rule of thumb is that a will should be reviewed every five years and if necessary it should be updated. 
    • However if a life changing event occurs in the testator’s life the will should be updated accordingly. Life changing events include: 
    • a beneficiary or executor dying;
    • a new beneficiary being born for example a child or grandchild; 
    • a specific gift is sold; or
    • the testator marries. 
    • Importantly a binding death nomination for a superannuation fund or life insurance policy expires every three years. A new binding death nomination will need to be made at that time. This time may be used as a prompt to check the currency of a will as well.

  • What is an intestate?
    • An intestate is a person who dies without a valid will. Their estate will be administered according to the laws of intestacy which is the legislation that dictates who will inherit their estate.

  • Can my witness also be a beneficiary under my will?
    • No. A person who is a beneficiary under a will who also witnesses the will is known as an ‘interested witness.’ 
    • If a beneficiary witnesses a will they will forfeit their gift under the will. 
    • Even if a spouse of a beneficiary under the will witnesses the will the beneficiary will forfeit their gift.

  • Can my executor be a beneficiary under my will?
    • Yes. It is common for a surviving spouse to be nominated both as executor and the sole beneficiary under a will.
  • Can I leave my half of a jointly owned property to my children from my first marriage?
    • If a property is owned as a joint tenancy with a new spouse when the testator dies their interest in the property evaporates at the moment of their death. The surviving joint tenant then becomes the sole legal owner of the property. 
    • This type of interest in a property cannot be left to a beneficiary in a will because the asset does not belong to the testator anymore and does not form part of their estate.
    • By contrast a property owned as a tenant in common with a new spouse is treated differently. The portion of the property owned by the testator does not evaporate at death. It can be left in their will to a beneficiary such as a child from a previous relationship.

  • What happens to my will when I get married?
    • Marriage automatically revokes an existing will unless the will contains a clause that contemplates the marriage.
  • What happens to my will when I get divorced?
    • Unless the will states otherwise a grant of divorce revokes any parts of the will that favour a person’s former spouse. There are some minor exceptions to these rules but generally the parts of a will that will be revoked include: 
    • gifts to the spouse; and
    • appointment as:
    •  trustee; 
    • guardian; or 
    • executor. 
    • Any gift to the spouse will be treated as though the spouse predeceased the testator.
    • Importantly mere separation from a person’s spouse will not affect the validity of a will. 
    • If you separate from your spouse and do not want them to inherit anything from you a new will should be made as soon as possible.
    • If you obtain a divorce it is good practice to update your will so that it is clear who you want the parts of your estate that would previously have gone to your ex-spouse to go to.

  • What happens if my will cannot be found after I die?
    • A search will be made for your will. This will involve an initial physical search of your home and papers. 
    • After that any known dealings with solicitors will be investigated by relying on your family’s recollections. The public trustee of your state or territory will be checked. 
    • Some states and territories offer advertising facilities for lost wills. These may be relied on in addition to advertising in local and national newspapers.
    • If your original will is lost but your witnesses can provide evidence that they saw you sign the will on a particular day a copy of the will may be submitted to the court as an informal will in some states and territories. 
    • It is not good practice to rely on an informal will as the court may still reject it.
    • Newcastle Legal can assist you by placing your original will with us for safekeeping. 

  • Should I give anyone a copy of my signed will?
    • Your will is your business and you are not required to give anyone a copy. 
    • However there are benefits to giving someone a copy especially if you have funeral and body disposal instructions in the will.
    • Often a person’s will is not read until after their funeral so if the will contains specific instructions about the type of funeral or method of disposal for your body then it may be too late by the time the instructions come to light.
    • Also by giving your executor a copy of the will they are aware of your wishes in advance and can judge whether they are willing or able to be your executor. For example they may suffer from ill health or live some distance from you and know that they will not be able to perform their executorial duties. 

  • Who should I choose to be my executor?
    • An executor’s role is very important. You must choose someone you trust and who you believe is responsible and will act in accordance with your instructions.
    • Ideally the person should be about your age or younger so there is more likelihood that they will still be alive when you die.
    • Preferably two executors should be chosen with either executor being able to act on their own if the other is unwilling or unable to act as your executor. 
    • It is also a good idea to have at least one back-up executor in the event that your chosen executor or executors cannot act.

Q&A

  • What is the difference between leaving an annuity and leaving a lump sum amount of money under a will?

    I have a partner and would like to leave her either a lump sum amount or an annuity in my will. Can you please explain any problems associated with either of these options?


    Answer 

    • Annuities (also referred to as income streams) are an attractive option where a testator wants to provide for a beneficiary but does not want to give them a large lump sum. 
    • An annuity may be used where the beneficiary needs a regular source of income but may be frivolous with a lump sum for example a young adult or someone unaccustomed to handling large sums of money. 
    • An annuity may also be used where a partner is to be provided for in life and when they die the remaining funds are to go to a different beneficiary such as a child from a previous relationship.
    • It is important to note that annuities complicate the administration of an estate. This of course will increase the costs of administration such as adding to accountancy and legal costs. 
    • An annuity may also affect your partner’s ability to claim a pension after you die and there may be taxation implications. 
    • You would also need to ensure that your executors have the right powers under your will to purchase a commercial annuity if that is the type of annuity you are considering.
    • With an annuity that is paid from a nominated fund in your estate you will need to ensure that it does not conflict with the distribution of the residue of your estate. 
    • You should also ensure that the annuity returns a rate that you expect as commercial annuities often give a lower rate of interest than other investments.
    • A lump sum payment is a less complicated option. It gives the beneficiary freedom to use the funds when and where they like. 
    • A lump sum releases the estate and your executors and trustees from long-term commitments. This is a substantial cost saving to the estate especially if your executor or trustee is a corporate company that charges a fee for their services.
    • A one-off inheritance payment that will not be repeated, cannot be reasonably predicted and does not represent payment for services is exempt from the income test and asset test in relation to eligibility for a pension.
    • However the way that money is used may affect either the income test or asset test. 
    • For example if the money is used to pay off a beneficiary’s mortgage over their family home it will not affect the asset test but if the money is used to purchase an expensive artwork or income producing asset then it will affect the asset and income tests. 
    • This may detrimentally affect your partner’s eligibility for a pension.
    • It is essential that you seek financial and legal advice before you decide which option to take. 
    • There are many different ways to achieve want you want and any decision must be tailored to your specific circumstances.


  • What is a living will and do I need one?

    I was speaking to my friend yesterday and she told me that she has a living will in place to ensure that her best interests are protected if she was to lose her decision making capacity. She told me I should also get one as I have started becoming forgetful. What is a living will? 


    Answer 

    • A living will is a term that is gaining popularity in Australia. However in Australia a living will is known as an ‘enduring power of attorney’ or ‘appointment of an enduring guardian.’ The names of these documents tend to change depending on the state or territory.
    • For example in some states they are known as ‘enduring power of attorney (financial)’ and ‘enduring power of attorney (medical).’
    • Powers relating to medical treatment and financial affairs are usually separated into two distinct documents. 
    • Each document gives powers to a person or group of people (the attorney or attorneys) to be able to make decisions on your behalf when you are no longer in a position to make decisions for yourself for example due to accident or illness.
    • The instructions include what is to happen to you in relation to:
    • medical treatment; 
    • quality of life;
    • prolonging life;
    • your financial affairs; and
    • management of your assets.
    • The word ‘enduring’ means that its power continues after the appointer has lost the ability to make their own decisions.
    • The document may be drafted so that multiple attorneys must act together or may act individually.
    • It is possible to draft some restrictions to the powers however as there are so many variables in life the directions and powers cannot be too specific. For that reason it is essential that the person you appoint as your attorney is trustworthy and responsible. 

  • How can I safeguard a child’s inheritance particularly one with some sort of impairment?

    I have a child with an intellectual impairment who I would not trust to manage his inheritance after I die. I want to provide for his education, living expenses and secure his future. What can I do to safeguard his inheritance?


    Answer 

    • A protective trust is a good way of protecting your child’s inheritance. It may be set up while you are alive or when you die for example through a testamentary trust that is created by your will. 
    • A trust is a legal structure through which trust property is owned by the trustee of the trust. The trustee may be:
    • a single person;
    • a group of people; or 
    • a company acting as a corporate trustee. 
    • The trustee has a duty to look after the trust property and make it available or invest it as necessary for the benefit of the beneficiary of the trust such as your child.
    • The terms of the trust deed if created during your life or the will if it is a testamentary trust dictate how the assets of the trust are to be managed by the trustee and the powers the trustee has to manage those assets. 
    • Usually the trustee invests the trust property to generate a regular income for the beneficiary. 
    • Any funds that are remaining after the beneficiary dies will then transfer to other nominated beneficiaries.
    • If at some time in the future the beneficiary will be in a position to manage their own affairs it is possible for the beneficiary to be made a trustee of the trust. Conditions that must be met for this to occur can be outlined in the trust deed or will.

  • What happens if a person does not update their will to reflect life changing events?

    My partner of 5 and half years recently died. Unfortunately he did not change his will and it leaves everything to his ex-wife who he did not divorce. He has nominated me as the person who is to inherit his superannuation fund though. Does this mean that his wife gets that money too?


    Answer 

    • As a de facto partner you may have legal rights to make a family provision claim against your partner’s estate. You need to seek legal advice in relation to a claim. 
    • In relation to your partner’s superannuation fund if your partner nominated you as his ‘binding death nominee’ and that nomination is valid the superannuation funds do not form part of his estate and you will receive the account balance held by the fund. The binding nomination must not have expired and you must be a person that is permitted by the rules of the superannuation fund. 
    • The nomination is usually legally binding on the trustee of a superannuation fund regardless of how a person’s circumstances may have changed between the date of the nomination and the date of death. 
    • However this may depend on the fund and its rules. Some superannuation trustees have discretionary powers to bypass a death nomination in circumstances where they deem it necessary such as where there is a former spouse who has dependent children and there has not been a formal property settlement.
    • This is something you need to check with the particular superannuation fund.

  • What are the legal implications of writing a non-conventional will?

    My cousin wrote his will on the back of a pizza box at a party. I was sitting next to him and he told me he was very serious about what he was doing and if something were to happen to him I should make sure that his instructions as listed on the back of the pizza box were followed. Is this legal?


    Answer 

    • One of the rules for a valid will is that it must be written. It does not matter what it is written on just that it is written. So technically while not a good idea a will written on a pizza box may be a legally valid will. 
    • There are other rules that must be complied with for the will to be valid. 
    • The will must be signed by your cousin and his signature witnessed by two witnesses. 
    • The will may be able to be challenged if he or the witnesses were drunk and have no recollection of creating or witnessing the will. Those witnesses may also forfeit any gift to them or their spouse under the will.
    • If your cousin intends to rely on that will any appointed executors may strike other problems in the future. 
    • The will should:
    • be dated; 
    • revoke any previous testamentary acts such as wills or codicils;
    • appoint at least one executor; and 
    • appoint at least one beneficiary.
    • It is recommended that your cousin remake his will to ensure that it cannot be challenged and to save on expensive estate administration costs.

  • How can I appoint guardians for my minor children?

    My wife died 18 months ago so I am raising our children on my own. I want my brother and sister-in-law to look after my children if I die. How can I make this happen?


    Answer 

    • You should include a clause in your will that states that you want your brother and sister-in-law to be legal guardians of your minor children (under the age of 18 years) after your death.
    • It is essential that you discuss your wishes with your brother and sister-in-law to ensure that they are willing and able to take on this responsibility.

  • What property can be left by my will?

    I am writing out a will and am a little bit confused about what I can or cannot dispose of under my will. What types of property or things can I dispose of under my will? 


    Answer 

    • Any property owned by you at the date of your death may be gifted to a beneficiary or beneficiaries in your will. This may include:
    • your house;
    • an investment property; 
    • a motor vehicle; 
    • jewellery; 
    • artwork; 
    • collectibles; 
    • your personal effects; 
    • cash savings; and 
    • shares.
    • Property which cannot be gifted by a will includes:
    • assets owned by a company;
    • property held by a trust;
    • property owned as a joint tenant with another or others; and
    • superannuation funds and life insurance which are subject to a valid binding death nomination.

  • Can a person who appears to no longer have capacity make changes to their will?

    My grandmother made a will 8 years ago but she wants to change it so she leaves her jewellery to my sister and me. We are afraid that our cousins may say that she did not know what she was doing as some of them think she is not with it anymore. We don’t want any trouble in the family.


    Answer 

    • As there may be some question about your grandmother’s capacity if this is the only change that she wants to make to her will the safest option is to create what is called a ‘codicil.’ 
    • A codicil is a side document that does not revoke former testamentary documents such as her current will. 
    • It may be used to either alter or add to the will. 
    • Assuming your grandmother had testamentary capacity when she made her will 8 years ago a challenge to her will may only succeed in invalidating the codicil.
    • She could also see her doctor to get a letter written confirming her current testamentary capacity and store this letter with the codicil and the will. 

  • Are stepchildren considered the deceased’s children when money is divided between children in the will?

    I married a woman who already had children. I am very fond of her children and love them as my own. I want to make sure that when I die my estate is divided among my own biological children and my stepchildren.


    Answer 

    • The law is unclear on this issue. There are cases in NSW that suggest stepchildren are included in the definition of your children. However if your biological children contest your will then your stepchildren would need to prove their right to inherit in the courts. This can be a very expensive and stressful process for everyone.
    • If you wish to include stepchildren as beneficiaries it is best to make your intentions clear by naming them specifically or including a general clause stating that any reference to your children also includes stepchildren.

  • What is the difference between a testator and a testatrix?

    I was looking through the will information sheet and came across two words – testator and testatrix. I am not sure what I am. Are there are differences between the two? 


    Answer 

    • They are essentially the same except one is male (testator) and the other is female (testatrix). 
    • This is a person who creates a will. 
    • In modern usage ‘testator’ is used for both males and females.

  • If I get married do I need to make a new will?

    I made a will 7 years ago. I recently got married to my girlfriend of 10 years. I don’t want to change anything in my will as my wife is already listed as a beneficiary under the will. Do I have to make a new will just because I am now married? 


    Answer 

    • Yes. Marriage revokes any existing testamentary acts such as a will or a codicil. 
    • The only exception to this rule is where the will includes a clause that it is made in contemplation of your marriage.
    • If your will won't change this just means that it will be simple to create a new will as you can use the content from your old will. You may still wish to engage a lawyer to assist with the witnessing and other formalities.

  • Do I need to update my will if a new grandchild is born?

    My wife and I made wills to leave our estate to our children and our grandchildren. Our wills leave specific gifts to our grandchildren but our family is still growing. Do we need to update our wills each time another grandchild is born?


    Answer 

    • That depends on how your wills are drafted. 
    • If your wills name specific grandchildren then any grandchildren not named, meaning those born after your wills were written, will not inherit anything from your estates. 
    • However if your wills were drafted so that your grandchildren as a class inherit equally from your estate then it is not necessary to update your wills each time an additional grandchild is born.

  • Can a will made and executed in Australia cover testator’s overseas assets?

    I have a house in Sweden that I want to leave to my sister under my will. My will has been made in Australia and I also intend it to be executed in Australia. Does my will here cover that property?


    Answer 

    • Technically yes. Your Australian will can deal with assets in other countries. 
    • However other countries have different inheritance rules to ours so an Australian will may be invalid in certain countries. 
    • It is best to seek legal advice in the country where the asset is held. It may be necessary to create an Australian will that specifically excludes overseas assets and another will to be made in the country where the asset is held.