What is a Will?
Why have a Will?
A legal document that sets out your wishes as to how your property is to be dealt with after your death. Note that “property” includes both real property (such as land/dwellings) and personal property (such as money, shares, investments, etc).
It is very important that the Will is correctly prepared and is kept up-to-date, especially as your personal circumstances change over time. A Will only comes into effect after your death and by then, it is too late to amend any errors in the Will or to make your wishes/instructions more clear. For these reasons, it is advisable to use a lawyer to prepare the Will and to give you advice as to the Will and its implications.
What is your objective?
If you do not make a Will, you will die “intestate” meaning the High Court will appoint a person or institution to act as your personal representative and your property will be distributed according to a standard formula set out in legislation. The result is that your property may not be distributed as you would have liked.
Do you merely wish to transfer your residuary estate (that is, your property after any debts, expenses have been paid) to your beneficiaries (e.g. children/grandchildren)
Do you wish to make arrangements to preserve and protect as much as possible your residuary estate for the benefit of your beneficiaries?
While somewhat subtle there is an important distinction between these two concepts.
Traditionally, the method of transferring wealth/property from one generation to the next has been via a Will.
However, with such a constantly changing and dynamic society, the traditional method may actually compromise your primary objective if not carefully thought through.
Say your family consists of two parents with three children. Traditionally, the parents would leave their estate to the surviving spouse and then on the death of the surviving spouse, the estate would be transferred to the three children equally (assuming the children survive their parents) who would each inherit a 1/3rd of their parents’ estate.
Parents are becoming increasingly concerned that the inheritance that would usually be left to their children under the Will is now vulnerable to relationship claims pursuant to the Property (Relationships) Act 1976 (the “PRA”), possible creditor claims, or even to excessive spending by a child beneficiary who is not so good with handling money!
As lawyers, we are seeing a change in the mindset of some people – this change is tending towards increased protection and preservation of their estate for the benefit of their children, instead of the traditional vesting of assets to children outright via the Will.
This means that the Will document itself is becoming a key mechanism/tool for achieving the objectives sought.
Will drafting Issues and considerations
It is imperative that your instructions are clear. To assist your lawyer to prepare a Will for you that meets your goals and objections, your lawyer essentially needs to develop a detailed profile of you which includes information such as you:
- Personal details – name, age, occupation, health status, etc
- Relationship status – married, single, de facto, divorced & remarried, etc
- Family relationships – children, grandchildren, step-children etc.
Assets and liabilities
To assist your lawyer, it is helpful to use and fill-in a Wills checklist which should request (for example) the following information/detail relating to your and your background:
- Name/s of your trustees/executors (i.e. the person/people who are to administer your estate)
- Full details of all money, investments property and possessions (including where and how held)
- Full name/s of your beneficiaries (i.e. the people who you intend leaving property to) and their relationship to you
- Any specific item or possession that you wish to leave/gift to a specific person/ people
- What will happen if your beneficiaries or executors die before you do
- What (if any) specific funeral arrangements you want
Signing and Witnessing a Will
There are specific signing and witnessing requirements that must be carried out in order for the Will to be valid.
Two people who are over 18 years of age must both see you sign your Will.
Both witnesses must also sign the Will in your presence, and there should be an “attestation” clause in the Will which confirms that you have signed the Will in the presence of the witnesses.
The two witnesses cannot be your executors; nor can they be people who are going to benefit in your Will.