Australia: Succession Law: The importance of making a will

What does a will allow you to do?

• Name one (1) or more guardians for your children
• Establish a trust to provide for your children, or a person with a disability
• Preserve your assets
• Give money to charity and philanthropic organisations such as 'MND & Me'

Why do you need a will?

You need a plan, and having a valid will is the only way to ensure that your estate goes to your family or friends of your choice. Having a valid and up to date will can help reduce stress for your family and friends, limit the costs to the administrator your estate and lessen the possibility for potential dispute over your estate.

What happens if you do not have a will?

If you pass away without a valid will you pass away 'intestate'. This means:

• Your assets will be distributed according to the laws of intestacy, as provided for in Part 3 of the Succession Act 1981 (QLD)
• There is no guarantee that your assets will be distributed as you had anticipated
• Your family and friends may not be provided for as you had hoped
• It may take more time and money to finalise your estate

Who can make a will?

To make a valid will you must be; at least 18 years of age, and of sound mind, memory and understanding.

To be valid, your will is required to meet the following criteria:

• Be in writing; and
• Be signed by you in front of two witnesses. Both must be; over the age of 18 years, cannot be visually impaired, and should not be included in said will.

The Supreme Court of Queensland can approve a will being made on behalf of someone who cannot legally prepare a will for themselves.

When/why do you need to update your will?

You can review your will as often as you like. At a minimum, you should aim to review your will at least every three (3) to five (5) years to ensure it still reflects your wishes and circumstances.

You may need to update your will if the following occur:

• You get married
• You start a de facto relationship
• You start a registered relationship
• You get divorced, or your marriage is annulled
• You end a de facto relationship
• You end a registered relationship, or it is void
• Your children, grandchildren, or any other persons you want to include as beneficiaries in your will are born
• Your assets or financial circumstances change
• Any person named as a beneficiary in your will passes away
• Any person named as an executor, trustee, or guardian in your will passes away or becomes unable or unwilling to act due to age, ill-health or any other reasons
• You wish to change your beneficiaries, executors, trustees or guardians named in your will
• You retire
• You are affected by a natural disaster
• You make a valid arrangement with the trustee of your superannuation fund to pay the proceeds of your superannuation into your estate

If you get married or start a registered relationship, your will is officially cancelled by the marriage or registered relationship – it takes a gift to your spouse or registered partner, or nominates them as an executor, trustee or guardian unless it was made with marriage or a registered relationship in mind.

Divorce does not officially cancel your will. Nonetheless it cancels any provision made in favour of your former spouse, as well as any appointment of that former spouse as an executor, trustee or guardian.

Ending your registered relationship or finding that your registered relationship is void does not officially cancel your will. However it does cancel any provision made in the will in favour of your former registered partner, as well as any appointment of that former spouse as an executor, trustee or guardian.

How do you get help to make your will?

The commercial team at Kaden Boriss Legal is able to assist clients in drawing wills and testamentary trusts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.