A will is a legal document with instructions for who you want to inherit your estate, care for your children, and be the executor of your estate when you pass away. In New South Wales, wills are governed by the Succession Act 2006.
It’s important to have your will prepared by legal experts who are experienced in all aspects of estate planning, including business law, accounting, taxation, and financial planning and investments.
Your will is an important legal document outlining your wishes for when you pass away. It details:
- Who do you want to receive your assets
- Who do you want to receive specific personal and heirloom items
- Any religious or cultural arrangements for your funeral
- Who do you want as a legal guardian for any children under 18 years
- Who did you choose to be your executor when you passed away
Legal validity
A will is legally valid in NSW if it is:
- In writing.
- Signed by the person making it (the “testator”).
- Signed by the testator in the presence of 2 witnesses aged over 18, present at the same time.
- Signed and attested to by the witnesses in the presence of the testator.
- The will needs to be dated. If no date is listed the witnesses may have to swear an affidavit as to when the will was signed to prove that the will was the testator’s last will.
- All witnesses must be aged at least 18 and not be family members of the testator. The witnesses cannot be a beneficiaries or know someone who may benefit from the will.
- A will made by a minor who is under 18 years of age is legally invalid. Unless it is made in the event of marriage or the minor is already married.
- The testator is free to dispose of any property or assets before they pass away even though those assets might be contained in the will, any remaining property can be distributed to the beneficiary or beneficiaries.
- One or two executors need to be nominated by the testator on the will to assist in the distribution of the estate following the terms of the will after all debts and taxes are paid. We recommend two executors in the event one dies before your passing.
An original signed version of the will needs to be stored at our office as your solicitor. The executors will need to each also be provided with an original signed version of the will for them to keep somewhere safe.
Otherwise, executors need to be advised where the document is stored so that it can be located upon the testator’s death. A court registrar usually offers free storage options for wills as well.
The wording of the will is important
Our expert wills and estates solicitors can ensure that the terms and scope of your will adequately address your intentions for your estate as the testator.
A court is permitted to intervene to consider evidence of the testator’s intention to help interpret the language used in a will if it is drafted in an ambiguous manner. It is therefore critical to retain solicitors who can properly draft your with sufficient specificity.
A poorly written will may result in a court making an order to rectify a will to carry out the testator’s actual intentions if the document does not do this or a clerical error was made. The beneficiary of the estate or a person seeking to make a claim on the estate may seek a court order within 12 months of the passing of the testator.
Revocation
A will is revoked by:
- The making of a new will;
- A marriage, civil partnership or de facto relationship;
- Divorce, annulment or end of a civil partnership;
- Express revocation;
- The testator burning, tearing or otherwise destroying it with the intention to revoke it;
- The testator writing on, or dealing with it, in a way that satisfies the court of an intention to revoke it.
We recommend you update your will based on the following change of circumstances:
- The testator marries or enters a de facto relationship;
- The testator separates, divorces, or ends a de facto relationship;
- The testator has children or grandchildren;
- An executor or beneficiary dies;
- A testator buys or sells property;
- A testator’s financial situation changes significantly.
- If the change is minor, the testator will need to make a codicil, which is an authorised amendment. It needs to be in writing and signed and witnessed by 2 people. If the change is major, a new will is usually required.
Family Provision Orders
It is important to ensure that your will makes adequate provision for the beneficiaries of your estate. Otherwise, a court may make this determination if it deems the maintenance, education or advancement in life of an “eligible person” is not adequately accounted for in the will.
A spouse, de facto partner, former spouse, child or dependant is considered an “eligible person”. The “eligible person” has a legal right to apply for an order within 12 months of the testator’s death otherwise they would be deemed to have accepted the testator’s wishes.
If you require legal assistance in this matter, our team of experienced family lawyers in Sydney can provide you with expert advice and representation.
Dying Intestate
When a person dies without a will, it is referred to as dying ‘intestate’. If this happens, an application needs to be made to the Supreme Court for ‘Letters of Administration’ – a document providing the court’s formal approval for someone to administer the estate of the deceased.
The Court generally grants administration of an intestate estate to the person or people with the greatest entitlement in the estate (this may be a spouse or children) or to the NSW Trustee and Guardian.
The appointed administrator is responsible for confirming relatives that are entitled to a share of a person’s estate, according to entitlements under intestacy rules in the Succession Act 2006 (NSW).
Enduring Power of Attorney
An enduring power of attorney is a legal document that allows you (the principal) to nominate one or more persons (referred to as attorneys) to act on your behalf. An enduring power of attorney gives the attorney the authority to manage your legal and financial affairs, including buying and selling real estate, shares and other assets, operating your bank accounts and spending money on your behalf.
The attorney’s power continues even if for any reason you lose your mental capacity to manage your own affairs. Once you lose your mental capacity you cannot revoke this power of attorney. If you want the power of attorney to cease if you lose your mental capacity, use the General Power of Attorney form.
An attorney under an enduring power of attorney cannot make decisions about your lifestyle or health. These decisions can only be made by a guardian (whether an enduring guardian appointed by you or a guardian appointed by the Civil and Administrative Tribunal or the Supreme Court).
General Power of Attorney
A general power of attorney is a legal document that allows you (the principal) to nominate one or more persons (referred to as an attorney) to act on your behalf. A general power of attorney gives the attorney the authority, if you choose, to manage your legal and financial affairs, including buying and selling real estate, shares and other assets for you, operating your bank accounts, and spending money on your behalf. A general power of attorney ceases if you lose your mental capacity after its execution.
If you wish the power of attorney to continue if you lose your mental capacity, use the Enduring Power of Attorney prescribed form. An attorney under general power of attorney cannot make decisions about your lifestyle or health.
These decisions can only be made by a guardian (whether an enduring guardian appointed by you or a guardian appointed by the Civil and Administrative Tribunal or the Supreme Court).
You may set whatever conditions and limitations on your attorney that you choose. An attorney must always act in your best interest. If your attorney does not follow your directions or does not act in your best interest, you should revoke the power of attorney. You or someone on your behalf should inform the attorney of the revocation, preferably in writing.
The attorney must then immediately cease to act as your attorney. If anyone else, such as a bank, has been advised about the power of attorney, that person or entity should also be informed of the revocation
For advice or representation in your legal matter, please contact our office today.
Disclaimer: This is not to be treated as specific legal advice. Please get in touch with our firm to discuss your specific legal matter.