Why should you have a Will?
A Will is a legal document that records your personal directions or wishes about how to deal with the assets in your estate, and other affairs relevant to you, upon your death.
A Will allows you to have a say on who will administer your estate and how your personal assets will be distributed. Having a Will generally enables smooth and efficient transmission of your assets on your death.
If you have children, a Will can assist you in providing security for their future. You can also use your Will to nominate a guardian for your children if they are under 18 when you die.
Without a Will, you will have no say on who administers your estate upon your death, and your assets will be distributed according to the laws of intestacy. In Queensland these laws are contained in the Succession Act 1981 (Qld).
Considerations when making a Will
Here are some key matters to consider if you have decided to make a Will:
- Your freedom and duty when making a Will
- What can you give under a Will?
- Passing control of trust and company structures
- How do I give to members of my blended family?
- Has my Will been properly prepared and signed? What happens if I don’t have a valid Will?
- When should I update my Will?
A Will allows you to appoint an executor to be responsible for representing your wishes on your death, distributing your estate according to your Will, and protecting the interests of your loved ones.
If you have chosen to appoint a friend or relative as executor, you do not need to disclose to them the contents of your Will.
Your executors usually appoint lawyers to advise and help them.
- First preferred Executor(s)
- Acting jointly?
- Relationship to each other
- Reserve executor(s)
If you have a child or children under the age of 18, it is important that you consider having a say as to who their guardian will be when you pass away.
It may be in your child or children’s best interests for you to set out who you want to care for them in your Will.
If a parent of your child survives you, the surviving parent will generally continue to exercise parental care and authority over the child.
- Gift to guardian(s)?
- Executors and trustees to advance monies for children
- Joint appointments – conditional or continuing?
- Guardian guidelines
3. Your freedom and duty when making a Will
While you have capacity, you have the freedom to make a Will however you wish. No one has the right to dictate to you (or demand to know) what your Will contains.
However, when you are making a Will, the law effectively imposes a duty on you to consider anyone who might reasonably expect to benefit from your estate.
Whether or not you have a Will, the law provides spouses (including de factos and some former spouses), children (including step-children) and certain dependants with the right to apply to the Court for further provision from your estate, after you have died, if they have not received adequate provision for their proper maintenance and support. This is called a Family Provision Application.
We recommend taking legal advice on the best approach to manage the risk of a Family Provision Application according to your personal circumstances.
- disentitling conduct
- any inter vivos provision
- the size or nature of your estate
- strategic property holding
4. What you can give under a Will?
Under the Succession Act 1981 (Qld), (1) a person may dispose by Will of:
- any property to which the Will maker is entitled at the time of their death (not on the date of the Will); and
- any property to which the personal representative of the Will maker becomes entitled, in their capacity as personal representative (including after the Will maker’s death).
- Real estate
- Shares/units in public companies/listed trusts
- Pets, motor vehicles, jewellery, art
- Assets outside Australia – do you need an international Will?
- Shares in private (Pty Ltd) companies
- Property holding arrangements
- Liabilities – do you have a solvent estate?
- Adequate descriptions of assets
- Forgiveness of loans or debts (CGT implications)
- Avoiding lists of gifts – risk of ademption
Things that may not immediately form part of your estate on your death include:
- Superannuation in a Retail Fund or a Self Managed Super Fund (“SMSF”)
- Life Insurance proceeds
- Property used in a business – subject to partnership or other arrangements?
- A review of the Register (folder) of SMSF core documents (trust deed, variations, and recent accounts, including member details)
- Binding Death Benefit Nominations – is yours valid?
- Life insurance policy
- Buy/sell or business succession arrangements
5. Passing control of trust and company structures
A person cannot dispose by Will of:
- Assets held by that person as trustee; (2)
- Other trust assets;
- Company assets.
However, depending on your needs and intentions, trust and company structures can be appropriate vehicles to provide for the ongoing needs of your loved ones after you die.
If you have a controlling interest in a trust or company holding valuable assets, you need to consider how this control might pass upon your death. The time to consider this is when you make a Will.
- Family Trusts / Unit Trusts / Hybrid Trusts / Fixed Trusts
- A review of the Trust Deed (and any variations), latest end-of-year financials for the Trust and Unit-holders Register for Unit Trusts
- Succession of Trustee
- Succession of Appointor (if any)
- Often the personal representative of the last surviving Appointor
- Consider nomination by Will (if Trust Deed allows)
- Trust property – any unpaid present entitlements?
- repayable on demand to the beneficiaries of the Trust. If there are significant UPE, this can greatly reduce the actual Trust assets.
- A review of the Constitution, Shareholders/JV Agreement (if any) and the most recent financial statements for the company
- Special rights attaching to different classes of shares
- Role of Directors
- Role of Shareholders
6. How do I give to members of my blended family?
If you have had or are undergoing a divorce or separation, it is important to think about:
- any court sanctioned property settlement
- remaining outstanding property settlement matters
- any ongoing maintenance orders or arrangements
- child support
These things may affect the enforceability of your Will or the risk of a Family Provision Application.
If you have started a new marriage or de facto relationship, think about:
- how to provide for your spouse
- how to provide for any children of a previous relationship
- Possible mutual Wills with a Will Contract
- Deed of Family Arrangement with adult children / dependants
7. Has my Will been properly prepared and signed?
If you have made your Will yourself or are in the process of making one, we recommend that you seek legal advice to ensure it is valid.
The Succession Act 1981 (Qld) (3) requires that a Will must be in writing and signed by the Will maker (or another person in the presence of and at the direction of the Will maker) with the intention of executing the Will. This signature must be made or acknowledged by the Will maker in the presence of 2 or more witnesses present at the same time, at least 2 of whom must attest and sign the Will in the presence of the Will maker.
In response to the COVID-19 pandemic, the Queensland Government passed legislation in 2020 modifying the usual requirements to enable electronic signing and remote witnessing of a Will under specific conditions. However, these modified arrangements expired on 30 June 2021, and the usual requirements apply on and from 1 July 2021.
What happens if I don’t have a valid Will?
If you do not have a valid Will, we recommend you speak with a Wills and Estates Lawyer to assist you in making one while you still have capacity.
If you have made a Will that does not comply with the legal requirements, the risks on your death include your loved ones becoming entangled in long and costly legal proceedings and the Court ultimately deciding that your Will is invalid. Then your estate may be distributed according to your previous Will (if you have one) or the rules of intestacy.
After you die, it is possible for the Court to dispense with the legal requirements for your Will if it does not comply. However, the Court process will always cause delays and incur costs in the administration of your estate.
8. When should I update my Will?
You should review your Will regularly and consider updating your Will as your circumstances change.
For example, you may need to consider updating your Will if:
- you have a child or children;
- you have a grandchild or grandchildren;
- you marry or divorce;
- your spouse or partner dies;
- an executor or beneficiary dies;
- your home or property ownership changes.
Have further questions about making your Will?
Contact our Business Development Team on (07) 3252 0011 to learn about our 1,2,3 Will-making process and arrange an appointment, or to book an estate planning consultation with one of our Brisbane Estate and Elder lawyers for a complex Will and estate plan.
This article was written by Kathleen Stonehouse (Senior Associate).