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Understanding Law: Writing a Will

Emily Bowler

No matter what stage of life you’re in, the thought of what will happen to your assets after you’re gone can seem a little unpleasant.

However, a little forethought now can save your loved ones a lot of stress and hassle in the future. Writing a will can be tricky territory – which is why it’s well worth enlisting the help of a professional. 

What is a will?

A will is a legal document that allows you to express your wishes for how your estate is to be managed and distributed after your death.

What are the requirements for a valid will?

In the ACT the basic requirements of a will are:

  • The will must be in writing;
  • The will must be signed on every page by the person making it;
  • The signatures of the person making the will must be witnessed (at the same time) by at least two people.

A will seems simple, can I draft it myself?

While it is certainly possible to draft your own will, it is generally not a good idea. Aside from the technical requirements, the law around wills can be particularly complex and wills must be carefully drafted. The last thing you want is to create unnecessary tax liability or to create a document that is likely to be contested. The best way to ensure that your will is valid and able to achieve the desired results is to have it drafted by a solicitor.

What is an executor?

An executor is the person that you appoint to administer your estate. As a matter of caution, it is generally good practice to appoint multiple executors in case the primary executor is not willing or able to carry out the role.

What is a beneficiary?

A beneficiary is a person or an entity such as a charity that receives a portion of your estate upon your death.

What is probate?

When you pass away it is necessary for your executor to apply to the Supreme Court of the Australian Capital Territory for a grant of probate. A grant of probate is an order from the Court which confirms that the will is valid. Once this order is made, your executor is able to administer your estate in accordance with your will.

Who should consider making a will?

A common misconception that people make when considering whether or not to make a will is that they do not have enough assets to justify the making of a will. As a will is not likely to be used for many years, chances are that your assets will accumulate. As such making a will enables you to plan ahead and secure your estate.

Essentially, anyone over the age of 18 should consider making a will. In particular, it is important to either make or update a will if:

  • You have purchased a property;
  • You are getting or have just been married;
  • Have children;
  • Intend to go overseas.

It is also important to review your will regularly and to consider updating it following major life events such as:

  • Marriage/being in a de facto relationship;
  • Children;
  • Divorce/Breakdown of a relationship;
  • Death of a family member;

What happens if I die without a will?

A person who dies without a will or without a valid will is known as ‘intestate’. When a person dies intestate, their estate will be divided in accordance with a formula set out in the Administration and Probate Act 1929 (ACT) and accordingly divided between particular categories of people. The division of an estate in this manner can lead to an undesirable and/or inequitable division of the estate. For this reason, it is extremely important to make sure that you have a valid will.

Can my will be challenged?

Even if you make a will, there is no way of guaranteeing that it won’t be challenged by way of a claim pursuant to the Family Provision Act 1969 (ACT). This is a large topic in itself and cannot be adequately covered in this article.

How can Baker, Deane & Nutt help me to write my will?

  • Explain the process of making a will to you and advise you on what a will actually is;
  • Take your detailed instructions over the phone or via email;
  • Answer any queries that you may have;
  • Advise you of applicable costs;
  • Prepare a draft version of the will and send to you for review;
  • Once you are happy with the draft we will arrange to meet with you to explain your will to you and then execute it.

For more information on Baker Deane & Nutt Lawyers, visit www.bdn.com.au 

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Emily Bowler

Emily Bowler is a solicitor with Baker Deane & Nutt Lawyers in the city office. Emily previously worked as an Associate at the ACT Magistrates Court where she developed a thorough knowledge of ACT legislation and Court procedures. Emily is a gifted advocate who appears regularly in both the ACT Magistrates Court and ACT Supreme Court. Emily is passionate about achieving the best outcome for her clients and her friendly nature is an asset to guiding her clients through the process.

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