What is a Will?

A Will is a document which sets out the wishes of a person for the distribution of that person’s property upon death. In order for a Will to be valid, it should meet certain formal requirements which are prescribed by the Wills Act.

Why do I need a Will?

If a person wishes his or her property to be disposed of in a particular way upon death, there is no other way to ensure this other than by making a Will. Without a Will, the people you most want to benefit from your estate may not receive anything at all. The amount of property, and the order in which the next of kin take the property under intestacy rules (having no valid will prior to death), may be directly against the wishes of the Will maker.

The reasons for having a Will include:

  1. To secure your children’s future: If your children are under 18 years of age, you may choose guardians and trustees for them, to ensure their maintenance and education.
  2. Marriage: When you marry, any existing Will is automatically revoked (cancelled) and becomes no longer valid.
  3. Tax implications: Ordinary income tax, capital gains tax, stamp duty and land tax may all have an impact on how a Will is prepared, therefore, a properly prepared Will may also effect significant tax savings to the beneficiaries, even protecting against claims from creditors.

Who may make a Will?

You must be over 18 years of age to make a Will. People who make Wills must have the mental capacity to understand that they are making a Will. They must understand that by their own actions they are making a Will, and are distributing their property according to their own intentions.

Does a lawyer have to draft a Will?

Although there is no formal requirement that a lawyer must draft a Will, it is advisable to have someone with legal knowledge draw up a Will. This prevents discrepancies, and the possibility of the Will being challenged after the testator/ix dies.

The Public Trustee or a private trustee company may draw up a Will. There may be no initial charge for this service, but upon administration of the estate, The Public Trustee or private trustee company will extract fees from the proceeds of the estate which may be considerably more than the charges by WN Legal.

Standard Will forms can be obtained from certain sources, however, for peace of mind, it is always advisable to obtain legal assistance in preparing a Will. There are many questions that can remain unanswered in a standard Will and an error in completing the form may invalidate the entire Will, or leave part of the estate to be dealt with under the laws of intestacy.

What if my circumstances change?

As your circumstances change, so should your Will. If you marry, or divorce, your current Will is revoked and a new Will should be prepared. The birth of a child, a significant increase in assets, or a blended family are just some of the reasons why a new Will should be prepared.

Who can contest a Will?

Under the Family Provision Act, spouses, children, parents and a de facto partner may be entitled to a claim under the estate. If you intend to exclude any of these claimants from your Will, it is important that a clause be inserted stating the reasons for this exclusion.

However, there is still no guarantee that the Court will not award part of the estate to the excluded claimant as the Courts powers are in-part discretionary.

Glossary of key terms

  • Beneficiary: A person who receives a part of a deceased person’s estate.
  • Estate: When a person dies and leaves a Will, their estate is distributed according to the wishes of the deceased.
  • Executor/ix: A Will maker must appoint someone in the Will to deal with the estate; this person is known as an executor (male) or executrix (female)
  • Grant of Probate: A Grant of Probate is the appointment of a Legal Personal Representative to control and administer a person’s estate after their death.
  • Intestate: A person that dies without leaving a Will is said to have died intestate. The estate is then distributed to the deceased’s relatives in an order fixed by the Administration Act 1903 (WA).
  • Testator/ix: A person who makes a Will is called a testator (male) or testatrix (female).