Family Matters

Making a valid will

A Will is a legal document that names the people you want to receive the property and possessions you own at the date of your death. These people are known as your beneficiaries.

your property and possessions include everything you own: your home, land, car, money in bank accounts, insurance policies, shares, jewellery, pictures, furniture and so on. Making a will is the only way you can ensure your assets will be distributed in the way you want after you die.

How can we help?

We at John F. Morrissey and Company will:

make sure your will is valid - properly drawn up, signed and witnessed;
make sure your wishes are clearly expressed in the will;
advise you regarding adequate provision for your spouse and children or for any former spouse or dependants;
advise you on choosing an executor and on the executor's right to be paid for his or her time and trouble in administering your estate;
assist you if you need advice on the best way to arrange your affairs;
keep the will in a safe place, without charge; and
advise and assist executors in the administration of your estate.

There are several questions you should ask yourself about wills and estates when you come to see us.

Q: What makes a will "valid"?

A: A valid will is one accepted by court and put into effect by a grant of rebate.

To be valid your will must be:

in writing - handwritten, typed or printed;
signed - ideally your signature should be at the end of the will;
and
witnessed - two witnesses must be present when you sign or acknowledge your will, and they, too, must sign in your presence, but they do not need to be present together at the time they sign.

If your will is not made in this manner it may not be enforcable. The court has discretion to grant or not grant probate (the confirmation that the will is valid) and your property could be disposed of as if you had not made a will at all. In exercising its discretion, the court needs to be satisfied that the document sets out how you want your assets to be distributed.

Q: Can I make a will myself?

A: You can make a will yourself if you wish, and printed will forms are available from stationers. However, there have been very many cases where homemade wills were either unclear, not properly drawn up or caused an unwanted tax liability. In general, solicitors only charge a small fee for making a will, and since it is one of the most important legal documents you will ever make, it is false economy to try to do it without skilled professional advice.

Q: How can I make sure my wishes are carried out?

A: In your will, you should appoint one or more people called executors to handle your affairs after you die.

You can choose anyone to be your executor - your spouse, relative, your friend, your solicitor - but it is a responsible position, and you should first ask them if they are prepared to take on the task and confirm with them that they have been appointed.

Q: What happens if I don't make a will?

A: The law provides a formula that sets out who is entitled to the property of a deceased person who hasn't left a will. The formula may not distribute your assets in the way you would have wanted.

However, it is not true that the Government takes a deceased person's property if there is no will. This can happen only in exceptional cases where there are no close relatives or persons in a family relationship surviving the deceased.

Q: Can I alter my will if I change my mind?

A: You are free to alter your will at any time. If your circumstances change - e.g., if you divorce or remarry, even late in life, you can and should alter your will.

In the case of remarriage it is wise to revise your will before the marriage as marriage can often alter the intention in a will.

One important point: you cannot simply make an alteration by crossing something out on the original will and writing in your new wishes. You must have any changes signed and witnessed.

Here are some other pages you may find useful:

Cohabitation Agreements
De facto Property Settlements
Family Provisions
Same sex Relationships

CONTACT US NOW

Level 1, 40 Macleay Street
POTTS POINT Sydney NSW 2011

Phone:	02 9331 0266
Fax:	02 9331 0277
Email:	joanne@johnfmorrissey.com.au