The Importance of a Will
What is a Will?
A will is a legal document that sets out who will inherit your assets and may also provide instructions for other matters, such as the care of a minor child, in the event of your death.
What Constitutes a Valid Will?
To ensure your will to be deemed enforceable, it must satisfy several requirements. Your will needs to be:
- In written form;
- Signed on each page; and
- Be witnessed by two witnesses who aren’t beneficiaries of your estate.
However, even if these requirements are met, your assets cannot be distributed immediately. The court must first grant probate, which is a legal document authorising your executor to manage your estate following your will.
Death Without a Will
Death without a will is referred to as an intestate death. The Administration and Probate Act 1958 (Vic) and the Supreme Court (Administration and Probate) Rules 2004 (Vic) outline the rules governing intestacy, which applies to any deceased individual who was residing in Victoria at the time of their death and did not leave a will. If this were to occur, all your assets would be distributed according to the law of intestacy and therefore may be distributed in a manner that may not align with your wishes.
Upon intestacy, a person, generally a close family member such as a spouse or children, may apply to the Supreme Court of Victoria for a grant of Letters of Administration to the applicant. This will allow them to collect all remaining estate of the deceased after the payment of appropriate funeral and administrative expenses, debts, and other liabilities.
Changing a will
There are many instances where changing a will is required, such as divorce or the death of a beneficiary. When a minor change is required, you may need to make a codicil which is an authorised amendment to a will. According to Section 2 of the Wills Act 1997 (Vic), a codicil is inclusive in the term ‘will’ for all purposes. As such, the codicil needs to comply with the legal conditions for validity, which include being in written form and being signed and witnessed by two people who aren’t beneficiaries of your estate. If there is a major change required, you may be better off creating a whole new will.
Spouses and Domestic (De Facto Partners) – Entitlement to Distribution of Assets
You have the authority to decide on who should inherit your assets, however, there is still an obligation to adequately support your spouse or de facto partner and children, inclusive of stepchildren. You may choose to exclude individuals out of your will, however, they may still contest this decision through a family provision claim, even if you have provided specific reasoning for doing so in the will.
Legislation specifies how assets of an intestate are to be distributed according to the deceased’s circumstances. The whole of the inheritance will be given to a spouse or domestic partner in cases where they are the only survivor and have no living children. A domestic partner must have lived with the deceased for at least two years before the deceased’s death or is the other parent of the deceased’s child who is under the age of 18 at the time of the deceased’s death. If a surviving spouse and domestic partner remain, their respective shares will be determined by how long the domestic partnership has lasted, this is outlined in the table below:
| The period that the partner has lived as a domestic partner of the intestate continuously before the intestate’s death | Spousal entitlement | Partner’s entitlement |
| Less than 4 years (must be at least 2 years unless they are a parent to the deceased child/children) | Two-thirds | One-third |
| 4 years or more but less than 5 years | Half | Half |
| 5 years of more but less than 6 years | One-third | Two-thirds |
| 6 years or more | None | All |
If the deceased had children and a surviving spouse, the spouse would receive personal belongings including jewellery, pets, furniture, stocks, shares, or anything utilised for business that was worth less than $100,000. The surviving spouse will get $100,000 plus interest plus one-third of the remaining amount if the estate is valued at more than $100,000. The remaining two-thirds of the estate will be split between the children, however in the event of death, the shares will be equally divided amongst the children.
Similarly, if the deceased left children and a domestic partner who cohabited with the deceased for more than two years, they would be entitled to the same inheritance as the abovementioned spouse. If the domestic relationship lasted less than two years, the children would inherit such. However, if the children were the offspring of both the deceased and the domestic partner, the domestic partner would receive the first $100,000 and one-third of the remaining inheritance.
Where to Keep a Will
Your will should be kept in a safe place and advisably the executor should be informed about its location. If you misplace your will and no one can find it, it will no longer be effective. Typically, your solicitor should store your will and provide you with a copy for your files.
What can you do with a will?
A will is a highly important legal document that assists you in making arrangements for life circumstances and allows for your assets to be distributed in accordance with your wishes. The will allows you to:
- Provide a backup for your living trust or estate plans;
- Provide a caretaker for any pets;
- Name a guardian to look after your kids;
- Distribute your assets to your wishes; and
- Name an executor to manage the terms of the will and protect the assets of the estate.
Elamine Lawyers – Your Estate Planning Matters
At Elamine Lawyers, we are aware of how challenging the will-writing process can be. For this reason, our experts specialising in wills and estates will guide you through the legal system and make sure your wishes are directly represented in your will.
To meet all your will demands, call us at 03 8400 0100 or send us an email at admin@elaminelaw.com.au.
