At Friedman Lurie Singh & D’Angelo we specialise in wills in Perth, meaning only experienced and dedicated lawyers will have conduct of your matter!
What is a Will?
A Will is a document which sets out the wishes of a person for the distribution of that person’s property upon death. In order for a Will to be valid, it should meet certain formal requirements which are prescribed by the Wills Act.
The Need For a Will
If a person wishes his or her property to be disposed of in a particular way upon death then there is no other way to ensure this than by making a Will. The amount of property and the order in which the next of kin take the property under intestacy rules (dying without having made a Will) may be directly against the wishes of the willmaker. To avoid this possibility a Will must be made. A sole surviving parent may wish to deal with guardianship of minor children on death and such an appointment is dealt with in a Will.
A properly prepared will may also effect significant tax savings to the beneficiaries and even protect against claims from creditors.
Explanation of Terms
A person who makes a Will is called a testator (male) and testatrix (female). When a person dies and leaves a Will, that person’s property – the estate- is distributed according to the wishes of the deceased, as expressed in the Will.
If a person dies without leaving a Will, the estate is distributed to the deceased’s relatives in an order fixed by the Administration Act 1903 (WA). Such a person is said to have died intestate.
A willmaker must appoint someone in the Will to deal with the estate. That person is known as an executor (male) or an executrix (female).
The appointment of an executor or executrix to control and administer a person’s estate after his or her death, is formalised and made official by the Court in an order known as a Grant of Probate. If there is no executor or executrix named in the Will, the Court may, upon application being made to it, appoint an administrator/trix to deal with the willmaker’s estate.
A person who receives a part of a deceased person’s estate is known as a beneficiary.
Where a person dies intestate, a person (usually a close member of the deceased’s family), upon application can be appointed by the Court to deal with the intestate’s estate.
For a Will to be formally valid it must comply with the provision of Section 8 of the Wills Act 1970 (WA):
- the Will must be in writing and be dated;
- each page of the Will must be signed by the willmaker or by his or her agent in the presence of two (2) witnesses; and
- both witnesses must sign the Will when both are present with the willmaker.
Signing and Witnessing a Will
The procedure set out in the Act should be carefully followed whenever a Will is signed otherwise the Will may be challenged or part or all of it declared invalid, defeating the very purpose of making the Will in the first place.
Standard Will forms can be obtained from certain newsagents but it is always advisable to obtain legal assistance in preparing a Will. There are many questions which may not come to the mind of the willmaker if a standard form is used and an error in completing the form may invalidate the whole Will or leave part of the estate to be dealt with under the laws of intestacy.
Does a Lawyer Have to Draft a Will
There is no formal requirement that a lawyer must draft a Will. It is, however, a safeguard to have someone with legal knowledge draw up a Will.
The Public Trustee or a private trustee company may draw up a Will. The Public Trustee or private trustee company may make no charge for this service provided it is appointed executor, but upon administration of the estate extracts a charge from the proceeds of the estate which charge may be considerably more than that charged by a lawyer.
Persons Who May Make a Will
Anyone over 18 years of age may make a Will. People who make Wills must have the mental capacity to know what they are doing for the Will to be valid. They must know that by their actions they are making a Will and are distributing their property according to their own intentions.
In 1987 the Wills Act was amended to allow the Supreme Court to give effect to “informal Wills” – ie” documents in which the formal requirements of the Wills Act have not been met. Informal Wills are generally the subject of expensive Court litigation and should, accordingly, be avoided wherever possible.
Tax implications, ordinary income tax, capital gains tax, stamp duty and land tax may all have an impact on how a Will is prepared. Professional guidance is essential.
Inheritance Act Applications
Unless the distribution of the testator’s estate is carefully considered, certain eligible persons may contest the terms of the Will under the Inheritance (Family and Dependants Provision) Act, thereby frustrating the testator’s wishes. You should seek our advice on the possible effect of the Act on your Will.
Review of Will
Even if you have made a Will, you should remember to review it from time to time to ensure that its provisions are current and meet with your wishes in light of any change in circumstance. See below.
Marriage and Divorce
Marriage and divorce revoke an existing Will. A change in your marital status is an important reason to review your Will.
Single Director/Member Companies
The Corporations Law authorises a personal representative appointed to administer a deceased person’s estate to appoint a director of the company. If no Will exists, there may be considerable delay before someone is appointed to administer the estate. The delay may be detrimental to or threaten the company’s very existence.
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