A well-crafted Will requires expertise and a careful consideration of your wishes.

At Macdonald Rudder Lawyers, we understand that the time following the passing of a loved one can be difficult.  A well-crafted Will will ensure your assets are protected and your loved ones don’t have to deal with any additional stress.

During the last 30 years, we have been helping our clients transition through the legal obligations with understanding, empathy, and expertise.

What is a Will?

A Will is a formal, legal, document which provides for the distribution of a person’s possessions (called Estate) following death. The law contains rules for the division of your estate, however by having a Will, you can distribute your possessions how you see fit.  We recommended that you hire a Will Lawyer to draft a Will for you. A poorly written Will can often lead to delays and Will Disputes by those who are not satisfied with what they inherited.  We understand this at Macdonald Rudder Lawyers having handled many Wills and Estate matters over the last 30 years.

What Should I include in a Will?

If you are making a Will, essential matters are to nominate an executor (the person or persons who administer your will and who run your estate after you have gone), and the people who are to benefit upon your death (beneficiaries) and what they are to receive.

Even for a simple Will, the choice of your Executor is critical.  Your Executor will represent you upon your death. They become you for the purposes of distributing in your assets, administering and winding up your estate.  The simple rule is that your Executor should be someone you trust; someone whose character you have assessed as being honourable and reliable.  If you have no one, you can next look to your lawyer

As a general rule assuming you are in good health, we suggest that you avoid the temptation of preparing a will on the basis that your assets and liabilities will not change.  We suggest you try to create a will that will remain applicable for many years.  For example, a common will is to leave everything to your spouse or if your spouse dies before you, to your children in equal shares.  There should be a provision dealing with what happens if a child dies leaving children (your grandchildren).

Remember that there is property that you may not be able to give under your will, such as jointly owned property.  Upon your death your interest in jointly held property passes to the survivor.  In some instances superannuation doesn’t go to the estate but to a surviving spouse or dependant child.

There are practical limitations under the Family Provision Act 1972 that mean a testator (the person making the will) has to make proper provision for various people; mainly children and spouse.  In instances where there are children from a previous marriage and an existing spouse (and spouse includes a de-facto spouse) it can be complicated to achieve the right balance.  In some instances no matter how fair the testator is with their dispositions under the will, a party may bring a claim and allege that proper provision was not made for them.  This can tie up the estate for a long time and generate significant legal fees.  If a testator concludes that a person is bound to be unhappy no matter how fair they are, a measure of estate planning may be warranted to limit the size of the estate at the date of death. .

Why Should I have a Will?

Macdonald Rudder Lawyers recommended that every person over the age of 18 has a Will. As we all know, the sad truth is, nobody is invincible. However, the most important reason for having a will is to ensure that your estate is divided according to your wishes. Without a Will, your estate will be distributed in accordance with the Administration Act 1903. Often the reality is that your Estate ends up distributed contrary to your wishes. The Administration Act 1903 contains a detailed table of who should receive what proportion of your property when you die, according to Parliament’s idea of what is usual and proper.  This leads to the risk that your Estate may not be divided amongst to your loved ones causing unnecessary stress during a time that is already difficult.  Your property may be distributed to someone you would have chosen not to provide for; e.g. rich or estranged siblings or cousins. If your spouse remarries, their new spouse may benefit from assets that you may have wished to reserve for your children.

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Have a question about Writing a Will?

If you have a question, would like some further information or would like to speak to one of our lawyers about writing a Will, make an enquiry now and we will be in touch.
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