Insights / January 13th, 2020

New Year’s Resolution: Do or Review your Will

Drafting a Will is a task often dreaded and commonly postponed by many. In fact, it is estimated that 50% of Australians do not currently have a valid Will. Consequently, when a person dies without a valid Will, state-based legislation determines how that person’s property or 'estate' will be distributed. In many cases, this distribution leads to outcomes that person may not have intended.

Without a Will, opportunities to make bequests to family members, friends or charities are lost. You are unable to nominate a trusted person to distribute your estate (known as an executor under a Will) or a legal guardian for your infant children.

Unfortunately, even amongst those who do have a Will in place, a Post Office Will or DIY Will Kit may have been used. Whilst this is a cost-effective option in the short term, completing your Will in this manner is fraught with danger and can mean significant costs will be incurred by that person’s estate post death. It is common for such Wills to be determined by the Court to be wholly or partially invalid due to the lack of specificity or being improperly executed or witnessed.

Completing your Will with the assistance of an experienced legal practitioner will enable you to receive advice regarding your succession planning tailored to your personal circumstances. Not only will you achieve certainty regarding the distribution of your assets on death, but it will also provide peace of mind for you and your family members that your Will is valid.

Circumstances that can affect your Will

Even if you already have a valid Will in place, your circumstances may have changed since your last Will was prepared. Outlined below are some of the key matters that may require your Will to be reviewed:

  • Marriage;

  • Matrimonial Separation or Divorce;

  • Birth of children;

  • Acquisition of new assets (such as real property or share portfolio); and

  • Death of executor, trustee or beneficiary.

Other Succession planning documentation to consider

At the same time as preparing (or updating) your Will, you may also wish to consider completing or updating an Enduring Power of Attorney and Advance Care Directive (previously called an Enduring Power of Guardianship in South Australia). Unlike your Will, these documents deal with your affairs during your life in the event that you are in an accident, suffer a medical episode or otherwise become mentally incapacitated and can no longer make those decisions for yourself.

Pursuant to the above documents, you are able to appoint trusted individuals to make financial and property related decisions (Enduring Power of Attorney) and health and lifestyle decisions (Advance Care Directive) on your behalf. You are also able to express your wishes regarding your lifestyle and healthcare in the event that you are unable to communicate your wishes to those persons in the future. These documents should also be reviewed on a regular basis to ensure that they accurately reflect your current personal circumstances.

If you need to make a new Will, Enduring Power of Attorney or Advance Care Directive (or it is time you reviewed your existing succession planning documents), please contact Emily Anderson from the Private Client Group - Contact Us.

This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.