29 Jan 2016

Many people share their experiences and stories from their Wills and Estate matters with family and friends. This can create myths about the way that Wills work. Here are a few facts that everyone should know about Wills made in Western Australia:

1. The person (or persons) that you nominate to be your executor is not obliged to accept that role. A clause appointing the executor is a wish only. This means that if your nominated executor is unable or unwilling to act, then they cannot be compelled to act. Your Will simply gives your nominated person a right of priority to act as your executor. If that person renounces their right, then any other person can act as your executor. In circumstances where there is no other person willing or able to act, then a professional executor (such as an accountant, solicitor or the Public Trustee) may be appropriate.

2. Marriage and divorce automatically invalidate a Will, unless the Will was made in contemplation of that marriage or divorce. It is important for your Will to have a clause expressly stating that the Will is made in contemplation of marriage or divorce.

3. Your Will gives away the assets that you own as at the date of your death. If your Will gives someone a specific item, such as a piece of jewellery, but you no longer own that item at the date of your death, then the beneficiary simply misses out on their gift. This is called “ademption”. The beneficiary is not compensated in any way for the value of the item.

4. Your Will should be updated as your circumstances change. A codicil is an additional document to your Will that makes minor amendments to your Will. A codicil is cheaper than making a new Will. However, it is usually best to make a new Will so that your wishes are clearly contained within the one document only.  

5. There are some types of assets that you can’t leave to a beneficiary by your Will. For example:

a) assets in your joint name with any other person – these assets will automatically go to the surviving owner; and

b) superannuation and life insurance – these benefits usually go to a person that you have nominated with your fund.

6. Under section 27 of the Wills Act 1970, if you leave a gift to your child in your Will, and that child predeceases you, but leaves children of their own (your grandchildren), then that gift will automatically pass to those grandchildren unless your Will says otherwise.

7. One of the formal requirements for a valid Will is that the will-maker’s signature must be witnessed by two independent adults. It is not appropriate for a beneficiary to witness the Will because this raises the possibility that the beneficiary has pressured the will-maker to sign the Will. The will-maker and the witnesses must all sign the Will in the presence of each other. If the will-maker and the witnesses all use the same pen, then this is some evidence that they were all together at the time of signing. It is also a good idea for the witnesses to print their full names, address and occupation in case they need to be located at a later date to give evidence about what happened at the time of signing.

8. A testamentary trust is a trust that arises upon the death of the Will-maker. The provisions of the trust are built in to the Will. The beneficiaries do not have direct control of their inheritance if it is held in a testamentary trust. A trustee will look after their inheritance, and make investments on their behalves. The trustee can choose to give cash sums to beneficiaries to assist with their living expenses, education, holidays and general financial support.

9. No Will is air-tight. Any one of the following people may be entitled to claim under the Family Provision Act 1972 (WA) for greater provision out of an estate:

a) spouse or de facto partner of the deceased;

b) children (whether biological or legally adopted); and

c) parents of the deceased.

In certain cases, step-children, grandchildren, former spouses and former de facto partners are also entitled to claim.

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

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