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
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
• 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
• The Will maker was too young at the time the
Will was made (under the age of 18 years) and not Court
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
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