Another year passed brings change to the lives of many people. Some graduate, others marry and, others still, retire and move on to life’s next great adventure.
It is crucial to remember that some of these changes in our lives have effects that we would not ordinarily consider. The acquisition of property, marriage and separation all have legal effects on our estate and possessions. A solicitor can advise you of the outcome of these changes, and how you can take steps to ensure that your final wishes are fulfilled. RM Legal Sydney’s Solicitors have decades of combined experience in wills and estate planning, and we have created responses to some frequently asked questions and reservations that people have regarding wills and estate planning.
1. I don’t need a will. I’m still young!
The Succession Act 2006 (NSW) is the key legislation that governs wills in NSW. The minimum age for the preparation of a will is 18 years old. Minimum age requirements are not placed due to any expectation that a person will prepare a will when they reach a certain age or life-milestone. Instead, the age requirement exists because once a person is a legal adult, the law acknowledges that person’s legal capacity to make decisions regarding their life, possessions and estate. Will’s aren’t just created by the elderly; they’re created because people want to provide for those they care about, or they have a charity or cause they feel particularly passionate about, or they have instructions they would like to leave regarding their after-life arrangements. Whatever your situation, if you have any possessions or property in your name, and have a plan or wish to ensure that it passes to a particular person or persons, it’s a good idea to speak to your solicitor about how we can plan your estate.
2. I have made wills in the past.
Excellent! A few important things to consider about your will, however, are if you have had any major changes to your life. If you have been married recently, your will may have been invalidated by your marriage (with certain exceptions). If you have recently acquired property, you should refer to your will and note if your will makes a provision to deal with your property generally, or if it refer’s to the property specifically. The difference between the two is that if your will deals with your property in a very particular way, some of your property might fall outside the scope of your testament, and may require the intervention of the courts before it can be dealt with. Additionally, if it has been some time since you last prepared your will, your life circumstances may have changed, or the beneficiaries under your will may be different depending on the circumstances. If any changes need to be made, there are some formalities that need to be completed for these additions or alterations to take effect, as simply amending the document by hand is not a valid amendment.
If the will has been invalidated by a marriage or dissolution of marriage, and you would like for the will to continue as normal, a separate will needs to be signed making a declaration that the original will is to remain in effect. Additionally, you can make a provision to reinstate all or part of the will at your discretion. If you have a valid will, and you would like to make a particular change to a certain part of it, you will need to have a ‘codicil’ prepared, and executed in the same manner as you would a will. This usually only applies to lengthy or complex wills, and usually its much simpler to prepare a new will.
3. I’ve prepared my own will.
We usually don’t recommend people preparing their own wills, unless they have specialized training in the area of wills and estates. There are certain formalities that need to be observed when preparing a will, such as ensuring that the will is clearly drafted, witnessed and executed correctly and that the beneficiaries to the will are not the witnesses to the signature. However, even if a will has been correctly executed and clearly written, it does not automatically ensure that it will be completely ‘airtight’. There are some duties and legislative requirements that must be observed, such as ensuring that your spouse, de facto partner, children or dependents are adequately looked after. If there are no benefits provided to these beneficiaries, a family provision claim can be brought against your estate. It is vital that you obtain advice regarding your rights and responsibilities under your last will and testament.
There are many more important considerations that need to be made when preparing a will. The easiest option is to plan out how you would like your estate dealt with, and allow your solicitor to take care of the rest and ensure that your wishes are fulfilled. RM Legal Sydney can help by assisting you with the planning of your estate, and drafting the necessary documents to protect you, your loved ones and to make sure that your estate is dealt withe exactly you want to. Call RM Legal Sydney today to make an appointment, and to speak to one of our solicitors about your next will.