What is a will?

A will is a legal document that sets out how you want your assets to be distributed upon your death. It gives you the opportunity to provide for your family and friends after you die. Assets include:

* Your house
* Land
* Car
* Shares
* Insurance policies
* Superannuation entitlement
* Money
* Clothes and jewellery
* Any other goods you own at the time of your death.

The testator can leave individual items, such as a car, to a specific beneficiary.

Testator: The person making the will.
Beneficiary: A person entitled to receive a benefit under a will.
Making a will

Who can make a will?

* Anyone over 18 years of age provided they have the mental capacity to understand what they are doing.
* A person under 18 whom is married or has obtained a court order to authorise the making of a will.

A will should:

* Be in writing.
* Signed by the person making the will.
* Signed in the presence of two witnesses, present at the same time.
o A beneficiary can be a witness to the signing of the will but, to avoid any disputes about the validity of the will, this is not recommended.
* The will must be dated at the time of signing.
* The will must be made by a person of his own free will, without pressure being exerted by anyone.

Regularly review and update your will
Several circumstances can affect wills, including:

* Death of the executor or beneficiary under the will.
* Change in relationships.
* Birth or death of children or other beneficiaries.
* Acquisition or sale of specific assets bequeathed in a will.

It is important wills are regularly reviewed, either on the happening of a significant event in life or every 5 years. This will ensure your will accords with your current wishes.

Wills and marriage

* Marriage: A will made prior to a marriage is no longer valid.
* Separation from your spouse: A will made prior to the separation will not be affected.
* Divorce: Any gifts to your divorced spouse as well as his or her appointment as executor will automatically be revoked.

You should make a new will after marriage, separation or divorce.

Keep your will safe
A will is an important document and should be kept in a safe place. For example:

* A bank
* With your lawyer
* In a private safe

The executor should be told of the will's whereabouts so it can be easily located. It is also advisable to give the executor a copy of the will in a sealed envelope.
Changing a will

Wills can be changed by

* Making a new will, which revokes earlier wills.
* Making a codicil (amendment) to an existing will, or
* Ripping up a will, showing an intention to revoke it.

You will need to make a new will to replace the one revoked.

A codicil is an addition or amendment to a will and is used for minor changes only, usually only one page long. It must conform to the usual requirements of a will.
If you do not make a will

If you do not make a will, you are said to have died intestate and your assets will be sold and distributed according to a specific formula outlined in the Administration and Probate Act 1958. This distribution may not be the same as your wishes, so it is important you make a valid will.

Administration of the estate
An administrator will be appointed by the court to distribute your assets. The administrator will usually be your next of kin.

* The court may order reasonable payment for acting as administrator. Payment will be made out of the estate.

Distribution of the estate
As a general rule:

1. Your spouse and children will receive your assets in accordance with a formula set out in legislation.
2. If you are not married and have no children, your estate will pass to your next of kin who will often be your parents.
3. If your parents are not alive, then your estate will pass to your brothers and sisters.
4. If there are no brothers and sisters then nieces and nephews.
5. If relatives cannot be located after extensive searching, the government will inherit your estate.

Domestic partners
Domestic partners, as defined under the Administration and Probate Amendment Act 1994, have certain inheritance rights.

* Domestic partners include certain same sex partners of relationships at least two years in duration or certain relationships where there is a child.

The role of an executor

The executor is the person appointed in the deceased's will to:

* Carry out the terms of the will.
* Determine the assets of the estate.
* Pay any debts.
* Distribute assets to beneficiaries named in the will.

The appointment of executor in the will is often referred to as an 'executor and trustee'.
Duties of an executor

Locate will and determine terms of will

* Locate the deceased's will – this must be the latest version of a will.
* Determine the precise nature of the duties and powers set out in the will.
* An executor should consult a lawyer to discuss the administration of the deceased's estate.

Funeral arrangements

* Arrange the funeral. Most banks will release funds from the deceased's account for funeral expenses before a Grant of Probate has been obtained.
* Check whether the deceased left any specific instructions in the will regarding the funeral arrangements or the disposal of the body.

Grant of Probate: This is a court order confirming the validity of the will. Documents must be filed in the office of the Registrar of Probate in the Supreme Court to obtain a grant of probate. The Registrar of Probates will decide whether the deceased's will is legally valid and, if so, make a Grant of Probate

Registrar of Probate

Distribute the estate

* Consolidate the deceased's assets and pay all the deceased's debts.
* Distribute the balance of the estate according to the directions contained in the deceased's will.
* The duty to distribute the estate may require continuing obligations. For example:
o If the beneficiaries are young children the executor must invest the estate funds until they are old enough to receive their share.
* Non-residuary beneficiaries are normally required to wait until a Grant of Probate is made.
* At this time, the will becomes a matter of public record.

Maintain records of assets and distribution

* Keep a record of money received and paid out.
* Provide a copy of the will and any other relevant document to any residuary beneficiary named in it.

Residuary beneficiaries: The people who inherit the remainder of the estate after special gifts have been made.

Ongoing obligations of executors
Some wills involve executors in ongoing obligations in relation to the estate. For example, gifts to young children will be held in trust until they reach the age when the gift vests - usually 18, 21 or 25 years of age.
Executors can claim costs

An executor is entitled to claim all costs and expenses incurred in administering the estate, and is usually entitled to an executor’s commission.

* Executors can apply to the Supreme Court for an executor's commission of up to 5 per cent of the estate’s value.
* Trustee companies can charge up to 5 per cent of the estate’s capital value for administering the estate.
* Trustees can also charge up to 6 per cent on all income received by the estate.
* Sometimes the will authorises these commission charges to be taken, or the residuary beneficiaries consent to an agreed rate of commission.

Where no executor is appointed in a will

Situations can arise where no executor is appointed under a will. For example, if

* The valid will fails to appoint an executor.
* The executor has died before the will maker.
* The executor has become divorced from the will maker.
* The executor appointed under the will does not want to accept the appointment.

In these situations, the court can still grant probate of the will. This is called letters of administration with the will annexed. A court order needs to be obtained before the deceased's estate is distributed.

Small estates
Special rules apply where the estate is small, as defined in legislation. The Small Estates Office of the Probate Office of the Supreme Court can deal with these estates.
Contesting a will

A will can be contested or challenged when:

* It is alleged the will was incorrectly executed or was tampered with.
* The will was executed under pressure from others or the will maker was incapable of making a will.
* Insufficient provision has been made in the will for a spouse, children or other persons the will maker has an obligation to provide for - formerly Testator's Family Maintenance applications (TFM's).
* The will has been incorrectly administered.

Contesting the validity or interpretation of a will can be costly and complex. Generally the courts cannot look behind the contents of a will where the words are clear and unambiguous.

TFM applications
Where family members have not been adequately provided for under the terms of a will, application can be made under Part IV of the Administration and Probate Act for provision to be made out of the deceased's estate.

* Applications must be made within 6 months of the grant of probate or letters of administration.

Who can apply?
For deaths that occurred before 20 July 1998.

* The category of persons who may challenge a will is limited to the deceased's immediate family (widow, widower and children), and may include former husbands/wives and illegitimate children.

For deaths occurring after 20 July 1998.

* The category of persons is wider and includes those persons the will maker had a responsibility to provide for, including de facto spouses, same sex partners (those described as 'domestic partners' under the Property Law Act).

Principles for redistribution
s90 Administration and Probate Act
A court will consider certain legislative criteria in determining whether a redistribution of a deceased's estate should be made for the benefit of an applicant, including:

* Size of the estate.
* Age, sex and health of applicant.
* Did the applicant receive provision from the deceased during his or her lifetime, or from another source?
* Closeness of the relationship between applicant and deceased.
* Character and conduct of applicant.

The court will be reluctant to interfere with the wishes of the deceased without clear evidence indicating it would be unfair or unreasonable for an applicant not to do so.
What a lawyer can do

A lawyer can:

* Ensure compliance with legal requirements so your will is properly drawn up, correctly signed and witnessed.
* Ensure beneficiaries are provided for, for example through the creation of a trust.
* Ensure your wishes are clearly expressed in the will and the will suits your situation and circumstances.
* Advise on whether a current or old will should be changed to reflect new circumstances.
* Advise on what circumstances your will could be contested and how you can prevent or reduce the chances of this occurring.
* Advise on whether you can make a claim from an estate and the likelihood of success.
* Pursue a claim on your behalf.
* Advise on the role of an administrator.
* Represent your interests in relation to any court matter.
* Advise executors on their obligations under a will and pursuant to the law.
* Advise on what happens where there is no executor.
* Provide advice where there appears to be an ambiguity in a will.