What is a Will?

In its simplest form, a Will is a legal document by which a person expresses their wishes as to how their property and possessions are to be distributed upon their death. Anyone over the age of 18 can make a Will, and you may make more than one Will in your lifetime. Your Will does not take effect until your death. The three main parties involved in a Will are as follows: –

1. A testator (“will-maker”) refers to the person who has made a valid will, or who has passed away leaving a valid will. Conversely, a person who dies without having a valid Will is said to have died intestate, and this is discussed in more detail below.
2. An executor (or “manager” of the estate) refers to the person named in the Will who has the responsibility to apply to the Supreme Court for authority to use the will {Probate), of collecting the assets, paying the debts and distributing the estate to the Beneficiaries according to the will. Executors can also be beneficiaries to the Will. There should be at least one alternative executor in case of an early death or inability of an executor.
3. A beneficiary is an individual person or charity that derives an advantage or benefit from a person’s Will. A beneficiary is entitled to receive his/her inheritance only after the testator has passed away, the executor has successfully applied for probate, has transferred the ownership of the assets to the beneficiary under the relevant law.

An executor will administer the estate in accordance with the testator’s Will and, once the estate’s debts have been paid, the executor will distribute the specific legacies and gifts to the specific beneficiaries and distribute any assets leftover from the residuary estate (“the remainder”). The remainder is typically distributed to beneficiaries in specified percentages or shares.

In making a Will, it is important to include a number of “What if?” clauses. That way, you can cover a range of scenarios without knowing what the future may hold. For example, stating person A will receive your prized jewellery but, if person A passes away before you, then person B would obtain the prized jewellery instead. This is particularly important in the remainder clause because if the remainder beneficiary should die before the testator and the will has no further direction, then this item would be a partial intestacy and dealt with pursuant to a list of beneficiaries that may have no connection with the testator’s wishes. See Intestacy below for more detail.

Why do I need a Will?

Making a will removes the doubts and difficulties that can arise when there is no evidence of the deceased person’s wishes, and being specific within your Will helps to distribute goods more easily. This is particularly useful for distributing land, vehicles and other expensive items.

What if there is no Will? (Intestacy)

If a person dies without having prepared a Will, their property and assets are distributed according to the laws of intestacy, which is when distribution of the estate is decided by way of a formula determined by the law. Without a Will, your belongings may not go to the people you want them to go, and instead to a list of beneficiaries decided by law. This may include relatives that the deceased had never any relationship with, and who may need to be found, sometimes in remote areas of the world, which can cause extra time and cost to the estate, with the result that the beneficiaries are unknown to the deceased share in the estate. Additionally, there is no control over who obtains specific items. For example, you may have sentimental belongings that you want to leave to particular people after you pass away, and having a Will is the only way to guarantee that those people will receive those items as per your wishes.

The formula used by the Courts does not take into consideration your close relationships to certain family members, and your possibly distant relationships with others. For example, if you are really close with your sibling and have not had contact with your parents for a number of years, under intestacy your parents would obtain the whole estate.

This process of intestacy can be long, and often your loved ones can be waiting for considerable time, and incurring extra costs, before they are able to access any of the money or assets left to them by you after your death. There are also a number of expenses that will be required to come out of your estate for this intestacy process, instead of going to your family, including a possible commission to the State Trustees Ltd.

Marriage

Marriage has tricky implications on a Will. Any Will which was made before a marriage (unless made referring to that particular marriage) becomes automatically void once a marriage occurs, and you are considered not to have ever made a will. Conversely, if you get married and make a Will after you are married, that Will shall continue in force even if you later divorce. If you are still legally married upon your death, that partner is entitled to a portion of your estate, and your separation is not taken into consideration.

This is why it is important to see your lawyer after important stages in your life, to update your Will by way of a codicil (which is like a correction to a will), or to create a new Will, depending on the situation. If you do not have a Will at all, and you and. your partner never marry, it is possible that your partner could miss out entirely on receiving any portion of your estate upon your death, regardless of the length of time you were together. As intestacy law currently stands, your adult children are more likely to receive benefits from your estate over your retired de facto partner, especially if other family members deny your relationship with your partner.

The terminology and the different aspects to consider in drafting a Will can be confusing. There are a number of elements required for a valid Will, and specific signing requirements can cause a Will to become void if completed incorrectly. Without proper execution of a Will, it may be a long and costly process through the Supreme Court to prove the informal Will did reflect your final wishes. For peace of mind, and to ensure a crucial element of the document is not missed, it is best to see a legal practitioner to assist you in drafting your Will rather than run the risk of doing it yourself.