Nyst Legal director Brendan Nyst outlines why it’s so important to have a valid and current will.
Q. What happens to my estate if I die without having prepared a will?
A. If you die and have not made a will or if you have an invalid will, you are said to have died ‘intestate’. Some examples of occasions when a will might be determined to be invalid are where the will has not been properly signed, where the will was made by a person who was of unsound mind at the time of making it, or where the will has been physically damaged to the extent that it cannot be properly interpreted.
If you die intestate, the laws of intestacy will determine how your estate must be distributed. Each Australian state has its own intestacy legislation, and in the absence of a will that would say how the deceased person would like their assets to be distributed, the intestacy rules determine what proportion of the deceased person’s estate must go to each of their surviving next-of-kin, such as their spouse, de facto spouse, children, and grandchildren.
If you have no spouse, children, or grandchildren and you die intestate, then under the intestacy rules provision is made for your parents, siblings, nephews, nieces, grandparents, uncles, aunts, and cousins. Your in-laws and stepparents, and others who may or may not be inclined to claim some entitlement, are not included in intestacy rules for a share of any assets.
Obviously, the best way to ensure that your estate is distributed in accordance with your wishes is to make a valid will.
Usually, wills are relatively cheap and simple to prepare. They don’t necessarily have to be in any particular form or use fancy, legalistic language. They can be written on the back of a beer-soaked drinks coaster if they have to be (although I wouldn’t recommend it). Whatever shape a will happens to be in, provided it manages to get the message across in clear and certain language and is duly signed and appropriately witnessed, it will be valid and enforceable.
But a well-thought-out, carefully planned, and skilfully drafted will can be extremely beneficial when crunch time comes around.
We lawyers are often asked when is a good time to make a will or have a will updated. The answer to that question is pretty simple: whenever you’re about to take one of those big, life-changing steps such as getting married, having kids, setting up a business, major surgery, separation, divorce, remarrying, or negotiating a business breakdown. In any of these instances, you should think about either doing or redoing your will.
It’s important to understand that wills and estate disputes are closely linked. Many estate disputes can be avoided if the will is properly drafted and meticulously documents the wishes of the testator, with a careful eye to minimising any challenge to the intended dispositions.
The best advice I can give you is if you don’t have a will, seek out some competent advice and get one drafted. And if you haven’t updated your will in the past five years, now is a good time to revisit it, if only to ensure your wishes and intentions regarding all your earthly assets and possessions remain unchanged.
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Brendan Nyst, Director and Head of Dispute Resolution & Litigation, Wills & Estates at Nyst Legal