What is a Will?

Everyone has heard of a Will, but what is it? A Will is a formal document that states a person’s wishes for how they would like their assets and personal belongings to be distributed or dealt with when they die.

A Will sets out things such as who is to be appointed as Executor/s, which assets and personal belongings are to be gifted or sold and to whom you wish for your assets or personal belongings to be given to, also known as the beneficiaries.

Written and prepared carefully and correctly, a Will ensures that your estate is distributed exactly how you wish.

What things should be written in a Will?

1. Who you wish to appoint as your Executor/s. Your executor/s is the person or persons that you wish to appoint to be responsible for administering your estate once you pass away. Executor/s are the only people who have the right to deal with your personal belongings and assets and administer your estate in accordance with your Will.

Executors have very strict legal obligations. Choosing the right person or people to be your Executor/s is something that should be very carefully considered. Choosing the wrong person or people could see your hard-earned assets be depleted in legal fees arising from disputes between executors and beneficiaries or as a result of the executor not administering your estate in a timely or proper manner.

Most people will choose family members to be their Executors. Whilst this seems like the most logical choice, sometimes it is not. If your affairs are complex or there is disharmony in the family particularly between executors and beneficiaries, then you may wish to appoint a professional such as an accountant or a solicitor or both as your executor. For more information on the importance of choosing your Executors wisely and things to consider when choosing your Executor/s, click here.

2. Who will be your beneficiaries. A beneficiary is a person to whom you wish to gift or transfer your assets. Your Will must very clearly state to whom you wish to leave your assets. You do not need to deal with each asset separately.  

If you have children and choose to exclude a child from your Will, it is imperative to obtain legal advice and have your Will carefully drafted to minimise the risk of the excluded child being able to make a successful claim against your estate once you pass away.

3. How your assets are dealt with. Consideration is then to be given to how your assets will be divided or gifted. You may like to gift certain assets to certain beneficiaries and divide the rest of your estate amongst your beneficiaries or have all your assets sold and the proceeds divided equally between your beneficiaries. It is up to you.

Can I do a DIY Will or post office Will?

Many people try and opt for the cheapest option when it comes to their Will especially if they believe their estate is only small. Whilst it may seem unnecessary to have a lawyer prepare your Will there are many disadvantages to making your own Will.

What are some disadvantages of making your own DIY Will?

• DIY Wills are more often than not rejected by the Supreme Court, meaning that your Will is rendered invalid and your estate is then administered in accordance with the laws of intestacy, which is the same as dying without a Will. This may not be how you wished for your assets to be distributed. Or, the Court my require more evidence in relation to your Will or the execution of it which adds quickly to legal costs. Even then, there is no certainty that it will proved.

• One word in your Will can change everything. Without obtaining proper legal advice, the structure and wording of your Will may not actually reflect your wishes as you intended or may be open to interpretation which can lead to disputes between beneficiaries later on. One word is all it takes to make all the difference. This is a fast-tracked way to deplete your assets and estate in legal fees or have your estate administered differently than how you wished.

• If you have a blended family, or own businesses, companies or trusts, these circumstances often do not get covered clearly or adequately in DIY Will options, most of the time leading to disputes over the Will or your estate, costing your estate unnecessary legal fees and delays. A carefully prepared Will covers your exact situation including business succession planning and careful consideration of your unique blended family.

• One small error in the Will signing or tampering of the original Will may render your Will invalid. Not knowing exactly how a Will is to be signed or even removing a single staple will mean your Will won’t be accepted by the Supreme Court and it will be taken as if you died without a Will. This again means that your estate will be distributed in accordance with law and not your exact wishes.

So, whilst grabbing a Will pack from your local post office or doing a cheap online Will might save you a little bit now, it will cost your estate more down the track!

Can I use Artificial Intelligence (AI) to make my Will?

With the rise of the use of Artificial Intelligence, we are seeing a lot more people using AI to assist in drafting Wills. Whilst you may think this will save you legal fees, it will cost you more later on.

AI drafted Wills are very poorly written and often do not cover your exact personal situation or circumstances nor understand them. AI generated Wills may sound well ‘legally’ written but are often written with very broad, repetitive terminology that can be quite confusing. This leaves situations where there is dispute about the interpretation of your Will, costing your estate unnecessary legal fees. AI will not ask you questions that are relevant to understanding your estate or drafting your Will.

Chances are that if you are using AI to assist in writing a Will, then you are unsure exactly what needs to be included to begin with. If this is the case, it is highly likely that you are also unaware of all the details you need to input into the AI program for it to actually generate a Will that covers your exact situation and circumstances. Missing one small detail can be the difference between having a legally valid Will or a Will instantly rejected by the Supreme Court. It is not worth the risk. After all, your assets are the culmination of your life’s hard work.

What is the best way to prepare a valid Will?

Come and see the team at Wollerman Shacklock Lawyers. Our experienced team understand the importance of having a carefully prepared Will that reflects your exact wishes and minimises the risk of claims being made against your estate once you pass.

What are the advantages of having Wollerman Shacklock Lawyers prepare your Will?

• We do not just draft a Will, we go through a thorough Estate Planning Health Check with you. This means we go over different aspects of your estate plan that are often unthought of to ensure all of your assets, circumstances and wishes are covered.

• We provide you with different strategies to achieve your goals and provide legal advice on those strategies so that you can be assured that your hard-earned assets will be dealt with exactly as you wish. This includes things other than just drafting your Will.

• We provide further legal advice on assets that are not covered in your Will such as superannuation funds, assets held in trusts or other business structures and properties held jointly with someone else.

• We provide legal advice on choosing your executors and assist in helping you decide who is the best fit for you.

• We provide legal advice and strategies for people who have more complex estates such as blended families, estranged families, or business and trust structures. Ensuring these situations are carefully considered and written into your Will correctly is the best way to protect you.

• We know what the Supreme Court requirements are so we prepare your Will carefully so that we minimise the risk of it being rejected down the track.

• We take the time to ensure you understand exactly what your Will says, that it reflects your wishes and that you are confident with your estate plan that is put in place.

Is paying for a lawyer to prepare your Will worth it?

If you consider the lifetime of your hard work that went into acquiring your assets, is spending a bit of money now to ensure that your assets go to whom you wish them to go to worth it? We believe it is.

Issues with DIY or cheap online Wills only arise once you have passed away. These issues end up costing your estate more than you could imagine, which means that your estate gets depleted in legal fees, rather than given to your loved ones. Spending a bit of money now, safeguards your assets and protects your loved ones from disputes down the track.

If you are ready to make your Will or make a new one, contact our experienced and caring team today on 03 9707 1155 or admin@wslegal.com.au.