THE IMPORTANCE OF A WILL

A will is an unusual document in that it only becomes operative upon your death and may freely be revoked or changed in the meantime. A will is simply an expression of your wishes concerning the distribution of your estate. A will names a person or company as the executor and trustee who is empowered with the duty to carry out the directions for the distribution of your estate.

An executor’s duties include matters such as arranging your funeral and burial, payment of your debts and the collection of your assets and the trustee’s duties are the distribution of those assets to those persons named as beneficiaries in your Will.

The trustee is also obliged to obtain final income tax clearance and any estate duty clearance that may be applicable. It is usual for the same person to be both the executor and the trustee.

Why have a Will?
In an event that you die without a Will the Administration Act 1969 sets out the legislative framework under which your estate shall be administered and distributed. That Act contains provisions setting out whom of your next kin can apply for a court order to administer your estate and secondly the priority for the distribution of your assets. The legislative system in all probability does not provide for the distribution of your assets how you would like. For example, in terms of the Act, if a person dies without a Will the surviving partner shall receive the deceased’s personal chattels plus the first $121,5000 worth of assets and then the balance will be divided, in the event of children also living, as to one-third to the partner and two-thirds for those children. This can often result in an unfortunate and inappropriate division. It is for these very reasons that a Will is essential document for all persons over the age of 20 to have.

The cost of having your solicitor or trustee company prepare a Will for yourself is usually minimal if there is a charge at all. The costs involved in any intestate administration are usually higher than if the deceased had left a Will.

Change in Circumstances
It must also be remembered that a Will remains valid until revoked on marriage unless that Will specifies it is made in contemplation of that marriage. Divorce does not revoke a will but the ex partner cannot derive any benefits. Separation does not affect the Provisions of the Will. Whether or not you make a new Will will depend entirely on you. We would advise that upon any separation you should always consider whether or not the provisions for your existing Will remain appropriate.

Other Matters to Consider
Other important matters to consider in drafting any Will are the appointments of guardians for any infant children, the Provisions of the Family Protection Act under which an aggrieved or disentitled relative can claim against the estate of a deceased person for better provision from that estate and the effect of jointly owned assets. It must be remembered that assets jointly owned as joint tenants go by operation of law to the surviving owner. It is only when jointly owned assets are owned as tenants in common that the deceased’s share in that asset goes into their estate and is dealt with according to the provisions of the deceased’s Will. Joint bank accounts generally pass to the surviving owner and this is very good means of making sure that your partner has funds immediately available following your death.

We cannot over emphasise the importance and the desirability for any person to firstly not only have a Will, but secondly to review it at regular intervals. If you are unsure whether or not any revision of your existing Will is in fact necessary a short discussion with your solicitor updating your present circumstances will soon reveal any deficiencies in your existing Will.