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THE ESSENTIALS OF A WILL

Whether you’re considering creating a will or want to better understand the components involved, here are some insights. Let’s dive into the building blocks of wills and explore the formalities and optional provisions that can be included to ensure your wishes are honoured.

BUILDING BLOCKS OF WILLS:

1. Revocation of Previous Wills: One of the fundamental elements of a will is the revocation of previous wills. Circumstances often change throughout our lives, making it necessary to update our wills accordingly. Including a revocation clause in your will is crucial to avoid confusion. It’s important to note that a blanket revocation clause can cancel wills made in other countries, so if you have assets abroad, make it clear in your will whether you want those wills to remain in effect.

2. Executor(s) and Trustee(s): The appointment of executors is another vital aspect of wills. Executors are responsible for carrying out your wishes as stated in the will. It is recommended to choose responsible and trustworthy individuals for this role. Selecting at least two executors is wise, as it provides a backup plan in case one is unable or unwilling to fulfill their duties.

3. Gifts: Specific gifts are items or assets that you leave to certain individuals or organizations. When including specific gifts in your will, it is crucial to be clear and specific. For example, stating “my engagement ring to my daughter, Sally” rather than “my ring to my daughter” avoids ambiguity, especially if you have multiple rings or daughters.

4. Residuary Estate: The residuary estate comprises all remaining assets that haven’t been specifically mentioned as gifts in your will. This part of your estate is distributed among the beneficiaries according to your instructions. Clearly outlining your intentions, such as “the balance of my estate to my children in equal shares”.

5. Executor/Trustee Powers: To effectively manage your estate, it is recommended to include a clause detailing the powers and authorities granted to your executor(s). This clause empowers them to make decisions, settle debts, and distribute assets according to your wishes.

6. Marriage Contemplated?: For those in de facto relationships, it is crucial to consider a unique provision related to marriage. Including a clause confirming that your will remains valid even if you get married is recommended. This is because getting married invalidates your previous will. Ensuring the validity of your will protects your loved ones from potential complications and unintended consequences in case of your passing.

7. Funeral Instructions: While funeral instructions can be included in your will, it’s important to consider their practicality. By the time your will is read, it is often too late for family members to adhere to your funeral wishes. Additionally, funeral instructions in a will are not legally binding, and your family can choose to make their own arrangements. Therefore, it is recommended to communicate your funeral preferences to your loved ones while you are alive.

8. Conditional Gifts: Conditional gifts come with specific conditions or requirements. For instance, you may leave a gift to someone only if they meet certain criteria or achieve a particular goal. It is crucial to ensure that the conditions are clear and legally enforceable.

9. Life Interests: Including life interests in your will grants someone the right to use or enjoy a specific property during their lifetime. This is useful for couples of second marriages and have their own children from their first marriages. These couples want to make sure that their own children have an inheritance but also want to make sure the spouse has a place to live when they have passed away.  A life interest allows the surviving spouse to live in the property and when they have passed, the property can then go to the children.

10. Family Trusts: If you have a family trust, it is advisable to seek legal advice to understand its implications. Assets held in a trust do not form part of your estate, as they belong to the trust itself. However, you can include provisions in your will regarding the appointment of trustees to manage the trust once you have passed away.

THE FORMALITIES OF WILLS:

Witnessing Requirements: To ensure legal validity, your will must be witnessed by at least two people who are not beneficiaries. If a beneficiary witnesses the signing, they and their spouse or de facto partner may lose their entitlement under the will. It is essential that the witnesses sign the will as well.

Initialing and Signing: When signing your will, it is important to initial each page to confirm that they belong together. Your signature should be made in the presence of the witnesses, further validating the authenticity of the document.

Understanding the essential elements of wills is crucial when planning for the future. By incorporating the building blocks of wills, adhering to the necessary formalities, and considering optional provisions, you can ensure that your final wishes are properly documented and legally binding.