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3 Reasons why you should have your Will prepared by a Lawyer

As you get older, you accumulate assets such as a home, a car, jewellery, and/or savings. It is assumed that you would want to direct where those assets will go when you pass away. The only definitive way to ensure this is to prepare a legally valid Will.

What is a Will?

A Will is a legal document which sets out your intentions in respect to the assets held by you at the time of your death. For a Will to be legally valid it must meet the requirements of section 6 of the Succession Act 2006, meaning that it:

  • Is made by a person who is at least aged 18 years.

  • Is in writing.

  • Is witnessed by two independent witnesses (who are not beneficiaries to the Will).

  • Is signed on each page.

  • Is made without coercion.

  • Is made while you have testamentary capacity.

A Will is used to ensure that your assets are gifted to the persons you wish to have them after you die. You may wish for your husband or wife to have all of your assets when you die. Just because you are married does not mean this will happen automatically. A Will removes any doubts or concerns your family members may have about who you intended to receive your assets after you pass away. It is important to make sure your Will is current at all times. It is important to store your original Will in a safe place, and let your family members and loved ones know where it is kept.

How are Wills challenged?

Wills are commonly challenged on the basis that the will maker did not have testamentary capacity at the time of making the Will. A person is said to have testamentary capacity if they:

  • Know what a Will is and understand that they are signing a Will.

  • Know and understand what property they have and how they are choosing to dispose of it.

  • Are able to consider the morality of the decisions they are making with respect to the gifting of their property.

Wills can also be challenged by persons who believe they should have benefited from your Will but were left out, or argue that they were not adequately provided for. Whilst there is no fool-proof way to prevent a Will being contested, there are many steps that can be taken to give your Will the best chance of avoiding contest.

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The problem with informal Wills

If a Will is not witnessed, or does not meet the requirements to be a legally valid Will, section 8 of the Succession Act 2006 allows the Court (in certain circumstances) to dispense with the formal requirements for execution, alteration or the part or full revocation of a Will. The Court must be satisfied that the deceased intended the document to be their Will. In determining whether the Court can be satisfied, the Court will consider:

  • Any evidence relating to the manner in which the document was executed.

  • Any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

  • Any other matters the Court thinks relevant.

If the Court is required to determine whether a Will is valid, there will be legal costs and filing fees involved, which more than likely will need to be paid via monies from the Estate of the deceased.

Why should a Lawyer prepare my Will?

There are no laws about who can and can’t prepare your Will. Your Will does not have to be prepared by a lawyer. We recommend that your Will be prepared by a lawyer for these 3 reasons:

  1. A lawyer will retain file notes about their meetings with you. A lawyer will be able to provide evidence to a Court (if required) as to your testamentary capacity at the time of making your Will, as well as your intentions and any observations as to there being no undue influence at the time of signing the Will. This evidence will make it difficult for anyone to challenge the contents of your Will for reasons of testamentary incapacity or undue influence.

  2. A lawyer will ensure that your testamentary intentions are formed into a legally valid Will. Ensuring your Will is legally valid provides certainty that the contents and intentions contained Will can be carried out. If a Will is made invalid your estate may be distributed in accordance with the laws of intestacy.

  3. A lawyer will prepare and write your testamentary intentions into your Will to ensure that there is no confusion about who receives what asset/s. It is all too common that lawyers look over informal wills to find that there are uncertain terms (leaving clauses potentially open to interpretation) or missing conditions or clauses which could potentially invalidate the entire Will.

Ardent Lawyers are experienced in preparing Wills and other Estate planning documents. If you would like to make an appointment to prepare or update your Will, or have any questions in relation to Wills, contact our law firm on (02) 4444 6808 or by email at contact@ardentlawyers.com.au.