Wills

A will is a document that a person can make to decide what happens to their property after death. It must be in writing and signed by the person making the will in the presence of two witnesses. All three must also sign or witness the will together. A will professionally prepared by one of our lawyers can help ensure that your assets go where you want, and when you want. This way, your beneficiaries avoid unnecessary expenses required to deal with an incomplete or faulty will or to defend against a family provision claim.

Most people require only a simple will. However, if you have an existing family trust or estate plan, or if you have a split family or a large estate, a complex will or estate plan may better serve your needs. We can also discuss the substantial tax and asset protection advantages associated with wills and estate planning.

Our lawyers can prepare a simple will from $660, and even less if you request two wills for a couple or a package with an enduring power of attorney or advance care directive. We typically charge based upon time completed for complex wills and estate plans, however a fixed fee price may be negotiated.

Making a valid will is the safest way to have your property dealt with according to your final wishes. If you die without making a valid will, the rules of intestacy (a legal formula) will govern the distribution of your assets. This might mean that your assets do not end up with the person you would have chosen. It also means that you have no control over who distributes your assets. Even if you’re happy to have your assets pass according to the law, consider the possibility that people you never intended to benefit may end up with part of your estate. Wills can be as simple or as complicated as you wish, but your family will always be better off if you have one. Yes, there is legislation in every State and Territory to compensate for when there is no will, but like most safety nets, such legislation is a distant second-best option.

It is important to review your will every 5 years. However, there are certain events that should always prompt you to review and amend your will. These may include: • you get married – this is essential, as marriage will in most cases revoke any pre-existing will • separation of you or a beneficiary • divorce of you or a beneficiary • death of a beneficiary • birth or adoption of a child to you or any of your beneficiaries • change of name • you or a beneficiary receive a large inheritance, or receipt of such an inheritance is imminent • you or a beneficiary becomes seriously ill • you purchase or sell an asset of substantial value • you sell or encumber real property that you have left to someone under your will • you establish a self-managed superannuation fund • a beneficiary becomes disabled or seriously ill • an executor dies, becomes unwilling to act as executor or becomes unsuitable due to age, ill health or for any other reason • if you have specifically left any property which you subsequently sell, give away, put in trust or into a partnership, or which changes its character or name • taxation laws change.

There are many types of property you cannot give by will, including: • Jointly held property passes automatically to the surviving joint owner (or owners) on the death of the first dying joint owner. It does not form part of the estate of the first dying joint owner. (If you own property with another person you may hold it either as joint tenants or as tenants in common. It is easy to confuse the two, and it is important to be sure what type of tenancy you have in the property. • Property held in trust will pass to a new nominated trustee to hold for the beneficiaries of the trust according to the terms of the trust. Although this can sometimes be done by will, the property will still be held on the same trusts after the death of the trustee as it was held before the death of the trustee. • Shares can usually left by will, but there are some types of shares that cannot. They need to be considered on a case by case basis. Examples of shares which might not be able to be left by will include: shares subject to buy-back arrangements or call options that allow the company or other shareholders to purchase the shares upon the death of the shareholder; shares with pre-emptive rights; some shares in private companies that have restrictions on them; and employee shares. • Partnership property cannot be left by will, but an interest in partnership property can. • Superannuation can generally not be left by will. The rules differ from scheme to scheme you should discuss the matter with the administrators of your superannuation fund. • The proceeds of life insurance policies nominated beneficiary of the policy will take precedence over the terms of the will. • Property sold but not yet transferred cannot be given by will. • Property subject to a contract to leave by will – property you have contracted to leave by will, and property subject to a mutual wills agreement, generally cannot be given by will, but the question is complicated and good legal advice is required.

It is common for more than one person to buy and own property, and when this occurs, ownership over the property will exist in either of two ways: as joint tenants or as tenants in common. It is important to consider how you own property, as each type of ownership confers different legal rights upon the registered proprietor. Joint tenancy is a form of co-ownership in which the following principles apply: • There are no shares. In theory each joint tenant has the whole of the property. No party has a specific share in the property while the joint tenancy continues. This means that the joint tenants must have equal interests in the property and are equally entitled to its rents and profits. There can be two or more joint tenants. • The principle of survivorship applies. On the death of one joint tenant the surviving joint tenant gets (or joint tenants get) the whole property automatically by operation of law, irrespective of any will made by the joint tenant who died, and irrespective of the intestacy rules. This is the principle of survivorship, which applies to joint tenancies. This gives considerable protection to a joint tenant. • It follows that property held in joint tenancy does not form part of the estate of a joint tenant who dies. This is important when deciding whether a grant of probate is needed. A grant of probate is required if the estate contains land (except in Queensland) but this does not include property held in joint tenancy, as it does not form part of the estate. The property passes automatically, by operation of law, to the survivor or survivors without forming part of the estate of the first-dying. A grant of probate is therefore not required for transfer (to the other joint tenant or tenants) of property held by the deceased as a joint tenant. Further, a joint tenant cannot by her or his will deal with property held in joint tenancy, because the property goes automatically to the other joint tenant on the death of the testator. • The principle of joint tenancy applies to real as well as personal property: it applies to land as well as to property like cars, shares, furniture and bank accounts. • Joint tenancy is usual in marriage where the spouses want to hold the property equally and want the principle of survivorship to apply. It is not common in other situations. It would be somewhat unusual for a partner to a domestic partnership or personal relationship or even a marriage who buys a house using only her or his own money or who has contributed much more to the purchase price than the other partner to want to register the house in joint names where the interests must be equal • It is possible for a joint tenant to sever a joint tenancy. Tenancy in common on the other hand is a form of co-ownership in which property is held in common with others but where, in contrast with joint tenants, the share of a deceased tenant in common passes to her or his beneficiaries under her or his will or intestacy and does not automatically pass to the surviving tenant or tenants in common. • Tenants in common have fixed, undivided shares in the property. Tenants in common can have unequal shares (for example, two-thirds to one and one- third to the other). • The share belonging to a tenant in common becomes part of the estate of that tenant in common when he or she dies; that is, a testator who is a tenant in common can leave her or his share by will or, if there is no will, the intestacy rules apply to the share that belonged to the tenant in common. (There is no principle of survivorship for tenants in common.) • Tenancy in common is usual where two people purchase a property together, especially where they have contributed unequally to the purchase price: the parties can own equal or unequal shares to reflect their respective contributions, and each can deal with her or his share by will. A husband and wife who purchase a property together out of what they see as the assets of the marriage often purchase as joint tenants, but if they are in a blended family it may be more appropriate to purchase the property as tenants in common. In wills, the standard form of gift, for example of residue or the estate, to the testator’s children is to the children as tenants in common.

If a will is made but is invalid, for example because it does not comply with the required formalities, an application can be made to the Supreme Court to have the invalid will treated as a valid will provided it is clear that the deceased person intended the document to be his or her will. However, such an application is not always successful and, even when it is successful, it is an expensive process that can be avoided by having a valid will prepared by a lawyer.

If you marry, your marriage revokes your will unless the will is expressed to be made in contemplation of that marriage. Entering a domestic partnership or personal relationship can also affect your will. Ending a domestic partnership or personal relationship can affect your will and your legal obligations. The matter is complex, and the law is not uniform throughout Australia. Some states are considering proposals for change. Do not add to or delete from the will after execution. Consult a solicitor if you want to change or revoke your will because even the simplest changes must be done correctly, or they may have disastrous results. If you later wish to make a list, letter or other document which relates to your affairs after your death, consult a solicitor. The danger is that it may not be clear whether the document is intended to be testamentary (that is, a will or codicil), and litigation about the status of the document may result.

A person making a will is free to dispose of his property in any way that he or she sees fit. However, the Inheritance (Family Provision) Act 1972 (SA) provides an exception (soon to be succeeded by the Succession Act 2023 (SA)). That Act allows certain relatives, including the spouse and children of the deceased, to claim greater provision for themselves if the deceased did not make adequate provision for their maintenance and support in his or her will. A will lawyer can advise you how to anticipate and deal with the possibility of such a claim.

An enduring power of attorney is a document that authorises a person you choose to make financial and property decisions, and certain other legal and business decisions, on your behalf. Usually, an enduring power of attorney is made so that it takes effect only if you become incapable of making the decisions yourself (although it can be made to take effect straight away).