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WHEN SHOULD I MAKE A NEW WILL?

CREATING A WILL IN MELBOURNE

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When should I make a new Will?

Making a Will guarantees your wishes and intentions will assist your surviving family or friends. Often we think about the need to "at some stage" we should make or update our Will. We live our lives either keeping busy, or in a lifestyle that restricts our ability to turn that "at some stage" Will, into a reality. We neglect our own needs.  

GOOD REASONS TO MAKE A WILL

First, if you do not have a Will, the people you want to leave a gift may not receive your gift. Governments usually benefit when there is no next of kin.

Secondly, in not saying how to deal with your assets is to disregard all you have earned and achieved in assets over the years with your hard work.

Issues for concern

CHILDREN

Children under 18 years of age, demand specific attention and provision in your Will. Often, a spouse may be around to look after the children but if you and your spouse both die, your children need guardians who are responsible for them. You should choose and appoint the guardians in your Will and make financial provision your guardian will need in bringing up your children.  

LAST OF YOUR FAMILY

If you are the last in your family and there is no next of kin, you should provide for friends or charities in your Will.  

TRUSTS

Some people hold their assets in a variety of trusts and you should think about the possible effect of your death on the trust, for example, which person controls the assets of the trust when you die?  

CAN I EXCLUDE ANYONE FROM MY WILL?

If you want to keep out specific persons from the estate, you must name the beneficiaries you wish to receive a gift. You can give reasons in your Will why a specific person is not to receive a share in your estate. Publishing the reasons in your Will may discourage dissatisfied persons from contesting the Will. You should get advice on whether it is essential to give your reasons in your Will for excluding a specific person.  

WHO SHOULD I APPOINT AS EXECUTORS?

You want to select at least two executors who will manage and finish all directions specified in your Will. An executor can be your spouse, a friend, beneficiary, or your lawyer. Most executors can charge fees to act in this position.  

WHO SHOULD PREPARE MY WILL?

Your lawyer should prepare your Will. You should never do it yourself because many “do it yourself" Wills have been invalid. There can be many reasons why a Will is invalid. For example, you did not sign it correctly, or it has vague references that are open to debate. An example of a vague reference in a Will may be, "I leave $500.00 to be divided amongst my cousins." What does "my cousins" mean? Does the term mean, blood cousin, cousins by marriage, or second cousins? This vague description o may hold that provision invalid. There may be a partial intestacy, if you wrongly identify your assets and beneficiaries.

You must avoid this risk, as the legal costs associated with disputes over vague terms in Wills are high. Therefore, the benefit in a Solicitor preparing your Will goes beyond those risks.  

SHOULD I UPDATE MY WILL?

A Will must properly and effectively serves its aim. As resources change, (financial or otherwise) you may need to add or make a new Will. You can change your Will by Codicil; a document read in conjunction with your Will. A Codicil is good if the changes are not abundant, but somewhat of a lesser nature such as, if you either separate or divorce, and you do not want your former spouse to receive anything from your estate, then you must change your Will. Divorce or separation does not annul your Will. You should review when your spouse, close relative, or friend dies, or when there is a new birth in your family.

Change your Will when you, your spouse, or children change financial status. Such a change includes, starting a business, finding financial successes, receiving superannuation, or retiring. It is advisable to review every two to five years. A marriage entered after your Will revokes the Will although you can make a Will stating it is in contemplation of a specific marriage.

Legal Terms & Expressions

WILL

A properly executed legal document that sets out how to distribute the property when you die, and includes the executor you chose to administer the Will. This document must comply with certain statutory requirements to be valid.  

EXECUTOR

The person named in the Will to carry out your wishes and instructions.  

CODICIL

A properly executed legal document that amends the original Will, read in conjunction with the Will.  

BENEFICIARY

The person named in the Will who will get a gift.  

ESTATE

The assets of the deceased that is available for distribution under the Will.  

INTESTACY

A legal situation that arises where one dies without making a Will.  

PROBATE

The legal protocol issued by the Supreme Court establishing and proving that a valid Will exists.  

TESTATOR

The person who has made a Will.  

ADMINISTRATOR

The person chosen by the Supreme Court according to law to administer the estate affairs if there is no Will.

NEED MORE INFORMATION

Behan Legal assists and advises on these important issues. For an appointment, call 03 9646 0344 .

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