Why should I ask a lawyer to draft my Will?
A Will is a legally binding document with certain requirements and formalities that must be adhered to. If certain requirements are not complied with then your loved ones may face extra legal costs, stress and time when trying to administer your estate after your death. It is therefore best that your Will be drafted by a lawyer who can also provide legal advice in relation to estate planning and how to decrease the possibility of someone contesting your Will.
At what age can you make a Will?
At the age of 18 you can make a valid Will. If you are under the age of 18, you can only make a Will if you are, or have,previously been married, or if you have received authorisation from the Court.
What are the requirements for a valid Will?
In accordance with section 8 of the Wills Act 1936 (SA), the requirements for a valid Will are:
-The Will must be in writing;
-The Will must be signed by the testator or by some other person in the testator’s presence and by the direction of the testator;
-It must appear that the testator signed the Will with the intention of giving effect to the Will;
-The Will must be signed by the testator in the presence of two or more independent adult witnesses who must be present at the same time; and
-The witnesses must also sign their names as witnesses on the Will in the presence of the testator.
How often should I update my Will?
You should update your Will when your circumstances or wishes change. A change in circumstance may include marriage, divorce, the birth of a child or grandchild, or the death of a loved one. You should also update your Will if you dispose of assets that you have made specific provisions for in your Will.
On what grounds can a Will be contested?
You may be able to contest a Will on a number of grounds such as:
At the time the testator made the Will they lacked the testamentary capacity to do so, for example if they were suffering from a mental illness;
-If the testator was coerced into making the Will or they made the Will under duress;
-If the Will was fraudulently made or the signature on the Will was forged; or
-If the Will did not make adequate provisions for a beneficiary.
What is the position if there are two or more executors and they do not agree?
Where an issue arises and two or more executors are unable to agree on a matter associated with the administration of an estate, an application can be made to the Supreme Court for advice or direction on the issue. The Judge may make an order or provide direction on the estate administration.
What happens in the event that an executor dies before fully administering an estate?
If the executor is a sole executor under the Will and dies prior to probate being granted then the court may appoint a person who is entitled as a beneficiary of the deceased’s estate to act as executor. In the event that there is no adult person who is able to act as executor in the State of South Australia then the Court may make an order that the Public Trustee carry out the administration of the estate.
If the executor dies after probate has been granted but before the estate is fully administered then the executor of the deceased executor’s estate will become the executor.
What other estate planning documents should I consider when I arrange my Will?
You should also consider obtaining the following documents:
Enduring Power of Attorney: An Enduring Power of Attorney document is a legal document that can only come into place whilst you are still alive. It allows you to appoint alternate decision makers who will be able to sign on your behalf in relation to financial decisions in the event that you become incapacitated.
Advance Care Directive: An Advance Care Directive document is a legal document that can only come into place whilst you are still alive. It allows you to appoint substitute decision makers who will be able to make decisions based on your health care and living arrangements in the event that you become incapacitated.