Australian Civil Liberties Union
Your Rights 2005
Chapter 11
WILLS AND ESTATES
Making aWill Executors. Letters of Administration.Testators. Family Maintenance.
Making
a Will. Anyone
over 18 can make a valid will. Also if you are in the army, air force
or navy or are married you can make a will before you are 18. Everyone should
make
a will. People who made wills many years ago should check to see that the terms
of these
wills are still in accordance with their intentions and are still valid. For
example, if a
will made before marriage is not clearly expressed to be made with marriage in
mind, the
will is automatically revoked on marriage. A will may be amended or completely
cancelled
by a later will.
The
first rule for making a will is not to do it yourself but to see a solicitor.
This is an extremely
technical area in which a layman can fall into traps without knowing it. The
small
legal costs incurred when a solicitor makes out a will may save quite large sums
of money
which may have to be spent if the terms of the will are proved to be uncertain
or if
the proper formalities for executing the will have not been carried
out.
If,
however, you have to make out your own will and intend to use the law
stationer’s form
the following instructions should be observed. The will should be signed by the
testator
(the person making the will) and his signature witnessed by two people. A
beneficiary
under the will, or the husband or wife of the beneficiary should not be a
witness.
It is also undesirable for the executor of the will to be a witness.The testator
and the
two witnesses should use the same pen. The testator and the two witnesses should
remain
present together until all three have signed.The testator should sign the will
in the presence
of the two witnesses. He should sign the will at the foot of each page of the
will and
also at the very end of the will.The witnesses’ signatures should appear after
that of the
testator in every place that the testator has signed it. Some of these
requirements have been
relaxed in some States, but it is suggested that the above practices always be
followed.
The will should be placed in a safe place, such as a bank box, and close
relatives should
be told where the will has been left.
Testators
may direct that their bodies are to be buried or cremated and indicate how
much
should be spent on their funeral and any monumental work over their grave.
Testators
may direct that their bodies be offered for medical research or transplants.They
may
bequeath specific items such as a motor car, however only items of value should
be specifically
bequeathed.
Codicils.
A
will may be altered by a codicil which should refer to the will it is
changing,
indicate what clauses in the will are to be changed, and state that the rest of
the will
remains valid. The codicil should be executed in the same way as the will being
amended,
and the same witnesses should be used.
Executors.
The
executor is the person appointed in the will to administer the estate
of
the deceased. The executor should be a responsible relative or friend, a
professional adviser
such as a solicitor, or a corporate executive.The executor’s job is to pay the
debts including
the funeral expenses and taxes and to distribute the property of the
deceased.
The first duty of the executor is to apply for probate of the will to the Supreme Court.
The
grant of probate confirms that the will is the last and valid will of the
testator and that
the executor is the proper person to administer the estate. A grant of probate
is usually
needed, no matter how small the estate. Except
where the estate is very complicated, the grant of probate can be made fairly
rapidly
after a solicitor is instructed to apply. It should take no more than three
months.
The
executors may be given wide powers to help them carry out the testator’s
intentions such
as power to carry on a business, invest, and advance monies for the education of
children.
If there is any doubt about the will in the mind of the executor, he should apply to the Supreme Court for clarification of the terms of the will. This is an expensive procedure and another reason to make sure that your will is properly drawn up. Certain gifts by the testator during his lifetime within three years of his death may be included in the estate.
If
a beneficiary dies before the deceased, generally speaking his share will lapse.
Every well-drawn
will should contain a clause which catches all the property, which has not been
previously
or properly disposed of. If a beneficiary dies before a testator, his lapsed
share would
be distributed according to the terms of this clause. Probate and estate duty is
no longer
payable to the Commonwealth Government or to State
Governments.
Letters
of Administration. What
happens if the executor dies before the testator? Usually
there will be two executors so this won’t matter. If there is only one executor
or if
both executors die before the testator, it is necessary to apply to the Supreme
Court to appoint
a person to administer the estate. If the beneficiary is a child of the
testator, who dies
before the testator, his share will be distributed among his children. Letters
of administration
are also required where there is no will (an intestacy) or the “will” is found
to
be invalid. The estate is then distributed by rigid rules to those people
(usually relatives)
entitled by law to a share.
Testator’s Family Maintenance. A married person should make proper provision for the family in a will. If the estate is likely to be small, generally it should all go to the surviving spouse. If proper provision is not made for the family, any members of the family may apply to the court, under the Testators Family Maintenance Act (enacted in all States of the Commonwealth), for “adequate provision” out of the estate.
Will
Kits. Phone: 0397512677, or visit www.legalkits.com.au.
Australian Civil Liberties Union