Where there’s a Will, there’s a way: Wills explained

A Will is a legal document that details what you’d like to happen with your estate upon your death.

Part 1 of 3

What is a Will?

A Will is a legal document that details what you’d like to happen with your estate upon your death. It helps ensure your assets are protected, which may include their dispersion according to your preferences, and also assists with succession planning and family planning such as the appointment of a guardian for your children. It also nominates a person (or multiple persons) as executor/s, for the carrying out of your wishes. Executing a valid Will is the best way you can seek to have your estate distributed according to your wishes after your death.

There is no legal requirement for a solicitor to prepare a Will, however using a legal professional will make sure your Will is valid and enforceable, and reduces the possibility of it being contested.

Why do I need a Will?

Your Will is “your voice after you’re gone”. The clearer your instructions, the easier it is for the people you leave behind. A well-written and current Will helps to ensure (as much as possible):

  • The right people are provided for after your death;
  • Your preferred arrangements for your children are carried out, including their guardian/s, schooling, financial support etc;
  • Your assets are distributed according to your specific wishes;
  • The people responsible for managing your estate understand how you would like your affairs managed; and
  • Your estate can be settled quickly and efficiently.

How do I ensure my Will is valid?

The Wills Act 1997 sets out the main requirements for making a Will in Victoria. The person who makes a Will is known as the testator (or testatrix).

For a Will to be valid it needs to comply with certain criteria:

  • Unless married, you must be over 18 years old (although the Supreme Court can approve a Will for people under 18 in exceptional circumstances);
  • It must be in writing – it can be handwritten, typed or printed; and
  • It must be signed by the person making the Will and witnessed by two or more witnesses (beneficiaries should not be a witness as it may cancel out their entitlement).

In addition, you must have “testamentary capacity”. This means:

  • You know and are capable of understanding the legal effect of a Will and what you are executing;
  • You must be aware of the extent of your assets;
  • You must be aware of the people who would normally be expected to benefit from your estate; and
  • You must not be prevented by reason of mental illness or mental disease from reaching rational decisions as to who is to benefit from your Will or how your estate is to be managed.

Preparing a valid Will which matches your testamentary intentions is not as easy as it sounds and may require very precise language. Wills no longer need to be registered in Victoria, so once you have one made, you should keep a copy yourself somewhere safe, secure but accessible, and another copy with the solicitor who drafted it or the executor listed in the Will. Of course, your Will will be of no use to anyone if it cannot be located after your death.

For more information about wills,  please contact Angela Catanzariti, Lynda Lim or Steven Dangerfield at Dangerfield Exley Lawyers or call 13 20 22.

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