Making a will

If you don’t have a will, you don’t have any say about how your estate is distributed. If you die without a will (known as ‘dying intestate’) your estate will be distributed to your relatives on the basis of a legal formula (called the ‘intestacy rules’). This could be very different from what you wanted or intended to happen. Dying ‘intestate’ can also cause complications, delays and extra costs for those you leave behind. If you die intestate and you don’t have any relatives closer than a first cousin, your estate will go to the government.

A will only takes effect after you have died. If you want someone to look after or make decisions about your finances while you are still alive but become unable to do this yourself you will need to make a power of attorney.

Anyone over 18 can make a will as long as they have mental capacity. A person with a mild intellectual disability or in the early stages of dementia may still be able to make a will if they have capacity at the time the will is made. If their capacity is in doubt, an assessment of their understanding needs to be made by an appropriate person, such as a medical practitioner, psychologist or psychiatrist.

Making a will can be a simple process and need not be expensive. A will must be signed and witnessed properly to be legally valid. It is also important that your intentions are expressed clearly to reduce the chance of any argument over who you wanted to get what. It is therefore best to have a solicitor, or the NSW Trustee and Guardian, or a trustee company, do your will for you. While there are do-it-yourself will kits, it is safer to get a professional to do your will to make sure it is done properly.

A professional can also advise you on any tax issues you need to take into account when drafting your will.

Solicitors’ fees vary and can depend on how complex the will is. You can shop around to compare how much solicitors will charge. Trustee companies charge a fee for preparing a will and fees also apply to administer your estate after you die.

The NSW Trustee and Guardian charges a set fee to make and update your will unless you are on a full Centrelink Age Pension in which case they will prepare your will for free. If you appoint the NSW Trustee and Guardian as your executor fees will apply when your estate is administered after you die. For more information on NSW Trustee and Guardian fees see www.tag.nsw.gov.au/fees-and-charges-wills.html.

Your will lasts until you die, unless you change it, make a new one or revoke (cancel) it.

A marriage will also revoke a will unless the will was made anticipating that particular marriage. If you plan to marry or divorce you may need to update your will. You should get legal advice about your situation.

You should also get legal advice about updating your will if your circumstances change in other ways, for example, if children or grandchildren are born, or if your partner dies.

The executor is the person named in your will who will be responsible for dealing with your estate after you die. This should be someone over 18 who you trust and who is prepared to take on this responsibility. Or you can appoint a professional, such as the NSW Trustee and Guardian or a solicitor, in which case you will be charged fees. You should make sure your executor knows where your will is kept.

Most solicitors will keep the original will in safe custody for a client for no charge. This is the safest option because if your will cannot be found, it will be assumed that you destroyed it and revoked it. You can also keep it in a safety deposit box in a bank, or in a safe place at home. It is a good idea to keep a signed copy with your personal papers, with a note explaining where the original will is. You should also give a copy to the executor (in a sealed envelope if you prefer) or tell them where the original is.

A will can be challenged on the grounds that it is not valid. The person contesting an invalid will would have to show that:

• it was not your last will (you had made another one at a later date)
• it was not properly signed and witnessed
• you did not have mental capacity when you made it (which is why it is important to make a will while you are still well and there is no question about your mental capacity)
• it was changed after it was originally signed, or
• you were forced or pressured (rather than encouraged) into making the will.

Certain categories of people can also contest a will within 12 months of your death if they believe they weren’t properly provided for in the will. This is called a ‘family provision claim’. Having your will made by a solicitor can lessen the chances of this happening.

Although challenges to wills get much publicity, only about 5% of wills in NSW ever get challenged in court, and only some of those are successful.

You can change your will at any time as long as you have mental capacity. However you cannot change your will by crossing out something in your will and initialling it, or writing something different in its place. You can make a ‘codicil’ (a separate document in which you make a change to your will) which will need to be signed and witnessed in the same way as when you made your will. It is usually best to just make a completely new will.

Leaving a gift in your will to a charity (a ‘bequest’) is a powerful way of expressing your support for a cause that is important to you. You may choose to leave:

• a residual bequest (whatever is left after all other gifts and costs have been deducted from your estate)
• a percentage of your estate
• a specific sum of money
• a gift of property or shares.

It is important to get legal advice to make sure this is done correctly (the charity must be correctly described) and that your loved ones are properly looked after.