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THE IMPORTANCE OF HAVING A WILL

A Will is an important legal document that sets out how you wish to dispose of your assets, gifts of particular importance to you and deal with your funeral directions after you have passed away.

If you have minor children (under the age of 18 years) your Will can also provide for the appointment of testamentary guardians so that someone else that you trust may have a say in your child's life.  It is important to note that these types of decisions generally relate to the child's education and care and a testamentary guardian does not obtain any custodial rights over the child merely by being appointed under your Will. If day to day care (custody) of the child was sought, they would need to formally apply through the Courts for a parenting order.

Wills are governed by law.  It is important to make certain that the strict formalities are complied with in order to have a valid Will. The new Wills Act (Wills Act 2007) now provides greater flexibility for the Courts to validate Wills which fall short of the very strict legal requirements.

A Will must be in writing, signed by the Will maker and dated and witnessed by two people who are not beneficiaries under the Will.  Anyone of sound mind over the age of 18 years of age can make a Will.  If you are under 18 years, the consent of a Family Court Judge is required.

Providing you are still of sound mind, you can alter or cancel your Will at any time.  The best method to achieve this is usually to execute a fresh Will which has a clause automatically revoking your previous Will.

If you do not have a valid Will in place, the provisions for intestacy (where a person dies without a Will) under the Administration Act 1969 will apply.  The distribution rules differ depending on who in your life survives you.

A Will may be invalidated for any of the following reasons:

•    The Will maker was not of sound mind (lacked testamentary capacity);
•    There was undue influence or undue pressure on the Will maker at the time the Will was executed;
•    The Will maker has subsequently married since the Will was made and the Will was not made in contemplation of a particular marriage that subsequently took place;
•    The Will did not meet the strict legal requirements (and cannot be validated by the Court under the Wills Act 2007);
•    The Will maker was too young at the time the Will was made (under the age of 18 years) and not Court approved.

A Will appoints an executor/trustee who is the person(s) responsible for ascertaining your assets and liabilities at your death and then for managing your estate administration.

The role of the executor can often be onerous and quite complex and you need to carefully consider who should be appointed into this role. Age, experience and independency may be important factors to consider. Appointing a professional person such as your lawyer can greatly assist in this regard.

As an example, your executor/trustee will need to assess whether there are any likely claims against your estate under the Property (Relationships) Act 1976 by a spouse or partner, claims under the Law Reform (Testamentary Promises) Act 1949 in respect to express or implied promises that you may have made to reward someone for services rendered and the Family Protection Act 1955 whereby your spouse or partner, children, grandchildren and, in certain cases, step-children may have a claim against your estate.

Once you execute a Will, it is important to bear in mind that it should be reviewed regularly.  Even an old Will signed years ago will be valid if this was signed by you and met the legal requirements at the time of execution.

Therefore any material change in your circumstances such as a marriage, beginning a new relationship, separation, dissolution of marriage (divorce), birth of a child, death of a person, changes to asset circumstances or changes in your wishes should all trigger a review.

If you want to look at putting a Will in place, or have an existing Will that may need review you can contact our Wills expert Gavin Cairns.

Written by Gavin Cairns at 09:00

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