Creating a Will

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Creating a Will

Creating a Will

Make an appointment with an experienced wills and probate lawyer by using the form below.

Interesting Fact

The longest Will was made in 1919 by Frederica Evelyn Stilwell Cook, an Englishwoman. She died in 1925 leaving an estate valued at about £100,000. The Will was 1,066 pages long containing 95,940 words. It was bounded in four gilt-edged leather volumes. The late Mrs Stilwell Cook left several quirky directions in her Will including instructing her executors to burn her diaries and not to inscribe her age on her tombstone. In contrast, the shortest Wills were exceptionally brief. Bimla Rishi from India made a Will in 1995 consisting of only one word in Hindi which when translated to English meant “All to son” while German Karl Tausch in 1967 wrote, “All to wife.”

You will most probably not require a Will as long as that prepared by the late Mrs Stilwell Cook.   To ensure certainty, your Will should however be in greater detail than the 3 words contained in the shortest Wills. Complex or simple, you should give due consideration to preparing a Will.  It is hard to think about your death.  However, young or old, no one is bullet proof.  If you want to ensure you have made appropriate provision for your loved ones based on their respective financial circumstances, you should seek legal advice and make a Will.  If you do not make a Will, the law will decide who are your beneficiaries and the amounts they each will receive upon your passing. This may result in conflict and expensive legal suits.

Question

  1. I understand that if I die without a Will, the law will distribute my estate to my wife and children. Is it necessary for me to make a Will?
  2. Can I prepare my own Will or use a Will Kit purchased from the internet or a newsagency or should I engage a lawyer to prepare my Will?
  3. What must I say in a Will? What are the legal requirements for a Will to be valid? 

The Law

A Will is a legal document that specifies how all your assets such as real estate, cash, shares, investments and personal effects are divided and distributed to your chosen beneficiaries when you pass away.  A Will also specifies a person known as “the executor” who is responsible for looking after the deceased estate and distributing the assets to the beneficiaries.

There is no legal requirement that a person should make a Will in his or her lifetime.

If a person dies without a Will, the person is said to have died “intestate” and the assets of the deceased will be distributed in accordance with the law.  In Western Australia, this is governed by the Administration Act 1903 (WA) which sets out the rules relating to entitlements in intestacy.  These rules sets out the next of kin of the deceased who will inherit the estate.   

For example, if a person dies without a Will leaving a spouse and children, the assets of the deceased will be distributed as follows:-

  • The spouse is entitled to all household chattels;
  • Where the net value of the deceased estate exceeds $50,000.00:
  • the spouse is entitled to the first $50,000.00 plus interest on this sum; and
  • of the balance assets, the spouse is entitled to one-third with the children sharing the remaining two-thirds in equal shares.

However, if a person dies leaving a spouse, parents and siblings but no children, the rules on entitlements on intestacy state that:-

  • The spouse is entitled to all household chattels;
  • Where the net value of the deceased estate exceeds $75,000.00:
  • the spouse is entitled to the first $75,000.00 plus interest on this sum;
  • of the balance assets, the spouse is entitled to one-half;
  • if the remainder of the estate exceeds $6,000.00, the parents take the first $6,000.00 absolutely plus the balance one-quarter in equal shares. The siblings (and the children of the deceased siblings) take the remaining one-quarter share of the estate.

For full details of the entitlements on intestacy, see Section 14 of the Administration Act 1903 (WA).

If a person dies leaving a Will and probate of this Will is granted by the Court, then the assets of the deceased will be distributed in accordance with the wishes of the deceased set out in the Will. 

Matters for Consideration

If you do not have a Will, your estate will pass on to your next of kin in the manner prescribed by law.  You may not want this to occur. For example, instead of your estate passing to your spouse and held on trust for your young children until they turn 18 years old, you may want your spouse to inherit all of your assets so that she can decide how best to use the assets for the benefit of your family.  If you are married but without children, you may not want your siblings sharing in your estate when you pass away.

Hence, while there is no legal requirement for you to make a Will, the creation of a Will ensures that your assets are distributed according to your wishes upon your death.   If you do not make a Will during your lifetime, it may cause unnecessary angst or disputes among your family members during a time of grief and loss as your estate may not pass on to your intended beneficiaries.

A Will also specifies the executor who will manage the deceased estate and distribute the assets to the beneficiaries.   This brings a measure of certainty that your beneficiaries will be looked after as your estate will be managed by a trusted person of your choice.  It will also reduce conflict among family members who may not agree on the person to be appointed the administrator of your estate.

If you pass away without a Will and leave surviving beneficiaries under 18 years old, the Court will require an Administration Bond to be provided to protect the interest of those beneficiaries. An Administration Bond is a promise to pay a specified amount in the event that the estate is fraudulently or negligently administered as a result of which the assets have been dissipated to the detriment of the beneficiaries.  The Administration Bond is provided by two persons called sureties. The sureties should have sufficient assets so that they would be able to pay the relevant amount as specified in the bond if called upon to do so.   These requirements add further complication to obtaining Letters of Administration as sureties with the sufficient financial backing must be found or in the appropriate case, an application must be made to the Court to dispense with sureties.

There is no requirement for sureties if the deceased passes away with a valid Will.

In the circumstances, there are compelling reasons for you to prepare your Will to ensure the smooth and orderly management of your estate and in order for your assets to pass on to your intended loved ones.

There is no legal requirement that you must have your Will prepared by a lawyer.  You can create your own Will or use a Will Kit purchased from the internet or newsagency.  In order for this Will to be valid, it has to comply with certain formalities set out in the Wills Act 1970 (WA):-

  • the Will must be in writing;
  • the Will must be signed by the will-maker in the presence of at least two witnesses; and
  • the witnesses must sign the Will in the will-maker’s presence.

However, a self-made Will or the use of a Will Kit is fraught with danger.  If the Will is not properly drafted or executed, the mistake will only be found out after your death.   Your executor may then have difficulties correcting the Will and your wishes may not be carried out as you had intended.  Alternatively, your estate or beneficiaries may have to incur substantial legal costs to make an application to the Court to rectify the Will.   Furthermore, if you fail to make proper and adequate provision for your dependants in your Will, your dependants may decide to contest the Will and seek a share or greater share of your estate.  Hence, you should consider engaging a lawyer to provide legal advice and prepare your Will in accordance with the law.

Appointment

Make an appointment with an experienced wills and probate lawyer by using the form below.

What Is The Legal Help Project?

The Legal Help Project is an outreach initiative of Robertson Hayles Lawyers providing affordable initial legal advice to the community in areas of the law impacting on the individual. Robertson Hayles Lawyers is a legal practice based in Perth with more than 50 years of service to the Western Australian community.

Note

The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.



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