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Wills

People do not like thinking about death and the effects it has on those they leave behind, but it is something that has to be faced eventually.

It is natural that you should want your property and assets to pass to whomever you choose when you die. By making a will you can ensure that your assets go to those you wish should have them.

What is a will?

A will is a legal declaration of how you wish to dispose of your property after you die. It names the people you want to receive the property and possessions you own when you die. These people are known as your beneficiaries.

Your property and possessions include everything you own: your home, land, car, money in bank accounts, insurance policies, shares, jewellery, pictures, furniture, and so on. There are some things that cannot be given away in your will, such as property you hold in joint names, and assets held in companies, trusts and superannuation funds. Subject to this, however, most of your property and possessions can be dealt with by a will.

Making a will is the only way you can ensure that what you own will be distributed in the way you want after you die.


When is a will valid?

For a will to be valid, it must be capable of being accepted by a court and put into effect by a grant of probate.

To be valid your will must be:


  • In writing - handwritten, typed or printed;
  • Signed - ideally your signature should be at the end of the will;
  • Witnessed -two witnesses must be present when you sign your will, and they, too, must sign it in your presence,

    • If your will is not made in this manner it may not be enforceable, and your property could be disposed of as if you had not made a will.

    Can I write my own will?

    Yes, you can. However, it is not in your best interests. There have been very many cases where home-made wills caused problems, such as where they were either unclear or not properly drawn up. Home-made wills have even caused taxation problems, both for the estate of the deceased, and for the beneficiaries. Many of these cases end up in court and carry on for years, causing distress and hardship to the family of the deceased. As a will is one of the most important legal documents you will ever make, it is false economy to try to do it without skilled professional advice.

    What is an Executor, and what does an Executor do?

    An executor is the person appointed in your will to handle your affairs after you die. If you wish, you can name more than one person to act as executor. You can choose anyone to be your executor, such as your spouse or another relative, a friend or your Solicitor - but you should first ask them if they are prepared to take on the task and confirm with them that they have been appointed.

    Being an executor is a very responsible position.The executor may have to obtain probate of the will and pay any taxes, debts or expenses before finally distributing the balance to the beneficiaries named in your will.

    What happens if I don’t make a will, or if my will is invalid?

    In this situation, your estate will pass according to the intestacy rules.The intestacy rules provide a formula which sets out who is entitled to the property of a deceased person who has not left a valid will. The formula may not distribute your assets in the way you would have wanted. (See Legal Light article, 'It's traumatic enough')

    Can I change my will?

    Yes, you can. You are free to alter your will at any time. If your circumstances change, you can and should alter your will. However, you cannot simply make an alteration by, for instance, crossing something out on the original will and writing in your new wishes.

    If the alterations are minor, you can make a codicil (a separate document in which you change a provision in your will) but it is usually better to make an entirely new will unless the change is very simple. A codicil must be signed in the presence of two witnesses, in the same way as when you make your will.


    What happens to my will in the case of marriage or divorce?

    Generally, if you made a will before you married, that will is automatically revoked when you marry, unless it stated that it was made in contemplation of marriage. So if you marry, you will probably need to make a new will.

    If you divorce after making a will, then generally any gift or appointment (e.g. as an executor) in favour of your former spouse is automatically revoked. It is best that you make a new will or codicil if you are divorced or have been separated for a long time.

    Is there any restriction on who I can leave things to in my will?

    No, however it is important that you make proper provision in your will for your spouse and children. If you do not, they could take proceedings under the Family Provision Act to obtain on order from the court that they receive part of your estate.

    What if there is no will?

    If there is no will, then the court grants Letters of Administration and appoints an administrator to deal with the estate, which is distributed in accordance with the rules of intestacy. The intestacy rules set out an order of priority by listing potential classes of beneficiaries. If no beneficiary falls into the first listed class, then the whole estate will be divided equally between members of the second class, and so on.Once there is a person qualifying in a particular class, the whole estate passes to the member (or members)of that class.

    The classes are:

    Firstly, spouse and no issue:

    If there is a surviving spouse and no children, the whole of the estate passes to the spouse.

    Next, spouse and issue:

    If the value of the estate (less household chattels) is less than the prescribed amount (currently $200,000.00) then the spouse takes the whole estate. If the value of the estate (less household chattels) exceeds the prescribed amount, then the spouse receives:

  • the household chattels;
  • the prescribed amount plus interest; and
  • one half of the value of the remaining estate


    • The remaining estate passes to the children of the deceased. Issue means natural offspring of the deceased, that is, children, grandchildren and their children. The distribution is further complicated because the spouse has a right to elect to take the deceased's interest in a shared home even if this reduces the share passing to the issue.

    Next, issue and no spouse:

    The whole estate passes to the children.

    Next, no issue and no spouse:

    The whole estate passes to the intestate's parents in equal shares, however if only one parent survives then the whole estate passes to that parent.

    Next, no issue, no spouse and no parents:

    The order of priority provides that the estate passes t    o:
    • Brothers and sisters of the full blood; then
    • Brothers and sisters of the half blood, then
    • Grandparents, if more than one in equal shares, then
    • Uncles and aunts of the full blood, if more than one in equal shares, then
    • Uncles and aunts of the half blood, if more than one in equal shares.

    How can Stacks help?

    One of our experienced lawyers can assist in the following ways:
    • Making sure your will is valid, meaning properly drawn, signed and witnessed;
    • Making sure your wishes are clearly expressed in your will;
    • Advising you about adequate provision for your spouse and children, or for any former spouse or any dependants;
    • Advising you about taxation issues concerning your estate, such as any possible liability for capital gains tax which might result from provisions you intend to make in your will;
    • Advising you on choosing an executor;
    • Advising you on the best way to arrange your affairs.

    Nearest Stacks Offices:

    The firms listed below have an in-house specialist in this area.

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