Legal Advice Recommended For Making Your Will

Your solicitor will advise and guide you through the process of making your will.

Formality requirements

There are specific requirements for making a valid will:

1. the will must be in writing;

2. the will must be signed by the testator;

3. at least two witnesses must be present at the same time when the testator signs the will; and

4. each witness must sign the will in the presence of the testator.

If these requirements are not complied with, it may not be possible to obtain a grant of probate of your will after your death.

Many other problems can also be avoided by discussing your will with a solicitor who has specific knowledge of wills and the administration of deceased estates, for example clearly identifying the executor and beneficiaries of your will, correctly describing assets which you wish to leave to your beneficiaries.

Executors

Your executor must administer your estate in accordance with the provisions of your will. Your solicitor will explain to you the powers and duties of the executor and help you to decide who the most appropriate persons are to appoint as executors.

Which assets are not included in your Will

A solicitor will advise you about the assets that will pass under your will and other assets that may not automatically become part of your deceased estate. These assets commonly include jointly owned assets, superannuation death benefits or assets held in a company or a trust.

Your solicitor will advise you how to deal with these assets to ensure that your wishes are given effect to after your death.

Tax Obligation

There may be tax obligations attached to the gifts of certain assets of your estate for example capital gains tax on the gift of shares or an investment property.

Complex taxation rules apply to payment of death benefits from superannuation.

Your solicitor will alert you to these issues and refer you to obtain accounting advice to enable you to make informed decisions.

With careful consideration of tax and other issues, your will can be drafted to make sure that all your beneficiaries are treated equally.

Testamentary Capacity

During the meeting, your solicitor will ask questions about the members of your family, your assets and the circumstances that may lead to a dispute about your will or a claim against your estate.

It is important to tell your solicitor if you have been diagnosed with a medical condition or are using medication which may affect your ability to understand or communicate clearly about your will.

When a testator is unwell, of advanced years, using strong medication or close to death when the will was made, or if the testator suffered from memory loss or dementia at the time, the will may be challenged on the grounds that the testator did not have testamentary capacity when the will was made.

Many of the questions asked by the solicitor during the interview are aimed at determining whether there may be a question regarding testamentary capacity. The solicitor may recommend that a testator be assessed by his usual GP or a specialist and to report about the testator's ability to make and understand a will.

These assessments of capacity by the solicitor and the doctor may provide valuable evidence to the court in making a decision about the validity of a will.

Knowledge and understanding

Your solicitor will explain the contents of the will to you to ensure that you know and understand all the provisions of your will. If you are unable to read the will, it should be read to you and explained in a manner that you understand the meaning of the clauses. You may also request that the will be read by an interpreter in the language that you understand.

It is important that you ask questions about the words and phrases used in your will and clarify any legal terminology that you do not clearly understand.

Undue Influence

Testators are often influenced by friends or relatives about what to write in their wills. Your solicitor should see you on your own to ensure that you have an opportunity to speak freely and express your wishes to be included in your will.

If you feel under pressure to include provisions in your will which do not accurately reflect your wishes, you must discuss this with your solicitor and ask advice on how to overcome this problem.

Your will must record your wishes based on the circumstances known to you at the time of making your will.

Claims against your estate

Certain persons may be able to make a claim against your estate after your death.

Your solicitor will advise you about who may be an eligible claimant and how to protect your estate against claims.

You may also record your reasons for excluding certain persons from your will. This can be a separate document kept with your will.

Keep your will in a safe place

You must keep your will in a safe place where your executor can find it after your death. Your solicitor may be able to keep your will and other important documents in safe custody and to notify your executors of the whereabouts of your will after your death.

It is important to read your will regularly to ensure that it still reflects your wishes and to consult your solicitor if you wish to make changes to your will.

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