Family Wills

Will you or won’t you?

Making a will is a bit like superannuation, life insurance or other plans for the future; we all know we should do something at some point, if only we could get around to it. With wills, however, we don’t live to regret our lack of preparations; but those nearest and dearest to us do.
What happens to our property after death may seem intangible or is not something we want to contemplate. Nonetheless, there are very good reasons for having a valid will and a solicitor is well placed to help you make a will that reflects your intentions and your regard for family and friends. An estate that is not governed by your express wishes is a burden grieving family and friends should not have to deal with.

When a person dies without a will, they die in ‘intestate’, and the law is obliged to step in and administer his or her belongings and assets (the ‘estate’). In Queensland, the relevant law is Part III of the Succession Act 1981. This Act lists all those to whom your estate will be distributed and in what order, including spouses and former spouses, children, parents, grandparents, brothers and sisters and so on.

For many people, this list might generally reflect their wishes. However, the Act’s version of who-gets-what (the ‘ beneficiaries’) may be unsatisfactory – and unfair – compared to a customised will that clearly reflects your own life and relationships. Only you truly know your family situation and the friends you most value. Only you know who is will best appreciate your possessions and assets when you are gone. Your life is unique, whereas the distribution list prescribed by the Succession Act is not. Your own will can ensure the personal touches that will be otherwise be ignored.

For example, the Act automatically favours family over everyone else. However, there may be people who are not relatives but who you feel are entitled to a share of your estate before some family members; if you don’t make a will, this won’t happen. Even among your family members, the needs of some may be greater than others and your desire to help the most needy first – regardless of whether they are your spouse, child, sibling, or whoever – may be completely disregarded. Equally, you may feel there are family members who are not entitled to a share of your estate and this could be ignored if you don’t have a will.

Only your own will can reflect all your life experiences and relationships, both the good and the bad. Just as important as your own wishes is the need for your friends and family to know of them. Equally, harmony among those you leave behind is better than confusion and disagreement. If you leave it to the law to administer your estate, the way it divides your assets among your friends and family may defy your own wishes and create bad feeling among those you love.

Leaving it to the law to administer your estate can also have practical problems. When someone with a valid will dies, the deceased’s estate will be administered by the Executor who he or she has appointed in the will An Executor chosen by the deceased can efficiently execute the will, ensuring the process is sensitive and peaceful.

When someone dies intestate, the Supreme Court will make a Grant of Administration and appoint an Administrator to dispose of the deceased’s estate. The appointment of an Administrator can be more easily disputed by the bereaved who might feel that the appointee is not the best person for the job or did not enjoy the trust and confidence of the deceased. Furthermore, an expensive insurance bond may have to paid in case the Administrator tries to defraud the estate. This must be paid for out of the estate and may impact on the entitlements received by the beneficiaries. Clearly, it is easier for everyone concerned if there is an Executor, appointed by a will, who clearly enjoyed the full trust and confidence of the deceased.

How a solicitor can help you

In a sense, a will reflects everyone and everything in one’s life and that is a very broad and complex responsibility.

An experienced solicitor can help you construct a will in such a way that it best reflects your intentions. They can help identify everything in your estate and plan for anything that might happen between the time you make your will and time you die. There are many do-it-yourself will kits available but a solicitor will best know how to express your intentions in such a way that, whatever happens, they are understood and carried out after you die.

For example, your circumstances and assets might change before you pass away, but in your will you may have made very specific instructions that a given person is to receive a certain asset, such as a house or car. But if that asset is sold or destroyed, the person intended to receive it at the time you write your will could, in fact, receive nothing. Even more importantly, the intention behind that instruction – that you love and trust that person with the asset and understand that they will best appreciate it – will be lost and he or she may go unrecognised.

Also, you might not be aware of everything that is in your estate. Many people are not aware of every possible possession, investment or other asset that they actually own or which may be of value to those they leave behind. A solicitor can help you identify everything and ensure it is covered by the will.

Finally, a will must be made in a certain way to ensure it is valid. Like so many things, the devil is in the detail and a solicitor can best help you navigate the many requirements of a valid will. Ensuring that previous wills are cancelled, that your new will is properly witnessed by other people and that those people are valid witnesses, are just some of the many details that must be attended to.

A will is a vital legal document and your solicitor will provide both practical and thoughtful assistance to ensure it is complete and conclusive.


May 2022