What is a Will?
A Will is a legal document that sets out who you want to receive your assets when you die. Making a Will is the only way you can ensure your assets will be dealt with according to your wishes when you die. There is a large percentage of Australians (approximately 45%) who do not have a valid Will.
If you die without a Will your assets will be distributed according to a pre-determined formula and, in some circumstances where you have no immediate family, your assets will go to the State.
Why do I need a Will?
If you die without a Will, you die intestate. This means, as you didn’t have a Will, no-one knows who you wanted to leave your assets to and who you wanted to manage your estate. Your estate will then be managed an independent person who has does not know you are you family, and your assets will be distributed according to a set formula with certain family members receiving a certain percentage of your assets despite what you may have wanted them to receive.
Dying without a Will could result in your surviving spouse, family and friends, suffering unnecessary financial hardship and emotional stress. If you are in a de facto relationship, you will have to prove that the relationship existed. If you die intestate and have no surviving relatives closer than cousins, the State Government will receive all your assets.
Can I prepare my own Will?
We strongly recommend that you do not prepare your own Will. A Will must conform to strict legal requirements otherwise the Courts may decide it is not valid. If your Will is not valid then your assets will be distributed according to a set formula and your assets may not go to the people you intended to leave them to. Anyone without legal experience in drafting a Will risks making a mistake with the result being that the Will is invalid. If your Will is invalid, you lose the opportunity to ensure your testamentary wishes are carried out and that your loved ones are provided for as you intended.
The precise wording of a Will is a specialised and important legal task. The ordinary meaning of words is not necessarily the same as their legal meaning. Ambiguous wording is extremely common in home-made Wills and may result in substantial cost and delay in having the Supreme Court resolve the ambiguity. There are also strict requirements for how a Will is to be signed and witnessed, and who can witness a Will.
A Will is an important legal document. It is therefore advisable to have your Will professionally drafted and ensure your wishes are properly recorded and carried out. Having a Will properly drafted by a lawyer who is experienced in this area may save your family from unnecessary financial and emotional distress in the future.