With Good Will Week almost upon us (12 to 18 September 2010), it is time to consider whether you have in place a valid Will.
A survey undertaken in June 2010 by Newspoll revealed that about 45% of adults in NSW don’t have a valid Will. In such a circumstance, a person dies “intestate”.
A Will may be invalid for reasons including:
(a) it fails to properly dispose of all assets:
(b) it has not been properly signed and witnessed;
(c) the person did not have mental capacity at the time to make a Will; or
(d) the Will has been poorly drafted and fails to apply the legal rules of construction.
You should take steps to ensure that you have an up-to-date and legally valid Will, if any of the following apply to you:
(a) you are aged 18 or over;
(b) you have children under the age of 18 (the same Newspoll survey discloses 60% of parents with children under the age of 18, do not have a Will);
(c) if you are in a de facto relationship;
(d) if you are separated or divorced;
(e) if you have specific items—such as family heirlooms or items of a sentimental nature, that you wish to give to a particular person;
(f) if you have any major assets, including property, shares, life insurance or superannuation;
(g) you wish to make provision for “close friends” you consider part of your extended family; or
(h) you are not happy to let the Government decide who gets what—by application of a formula.
On 1 March 2010 new laws commenced in relation to the distribution of estates of people who die without a valid Will (see Chapter 4 of the Succession Act 2006 (NSW)) (“the Act”).
The Act, in effect, prescribes who gets what in particular circumstances where a person dies without a valid Will. Those circumstances include:
(a) where a deceased leaves a spouse (including a party to a ‘domestic partnership’) alone—whereby the spouse is entitled to the whole of the intestate’s estate;
(b) where there is a spouse and children of that relationship—whereby the spouse is entitled to the whole of the intestate’s estate;
(c) where there is a spouse and children (but not children of that relationship), the spouse is entitled to:
i. the intestate’s personal effects;
ii. a statutory legacy; and
iii. one-half of the remainder (if any) of the intestate estate (see Sections 111 to 113).
In addition, The Act provides for “multiple spouses”, for example, where a party is separated but not divorced and living with someone else at the time of death. In such a circumstance, both the current and the former spouses are entitled to inherit (see Division 3).
Although the Act widens the pool of people who can inherit in NSW (including children, parents, brothers and sisters, grandparents, and aunts and uncles), the Act still provides that, where a person dies without a Will and leaves no person who is entitled to their Estate, the State is entitled to the whole of the intestate Estate (see section 136).
A fundamental principal of Wills is that a person has “freedom of testamentary disposition”—which means simply, a person can dispose of their Estate however they wish.
Bearing that in mind, if you wish to direct how your Estate should be divided, you must prepare a valid, up-to-date Will, where your wishes are clearly expressed and which makes adequate provision to those entitled to your Estate.
WILL CHECKLIST
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My will has been properly drafted and signed.
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My will is current and up-to-date.
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I have appointed an Executor.
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My dependants are all catered for in my Will.
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My intentions are clearly stated in my Will.
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I have made provision for my debts to be paid directly from my Estate.
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I have nominated guardians for my minor children.
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My Will has been witnessed by two people at the time of signing.
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My Will is stored in a safe place.
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I have informed my Executor where my Will is located.
(as suggested by the St Vincent de Paul Society)
If you require any further information or assistance please contact our Nicholas Pidcock at the Newcastle Office of Burke Elphick & Mead Lawyers.
