Published: 24 January 2020
Author: Amanda Burns and Nadine Scarlett

12 things you should know in preparing your Will

No two Wills or estate plans are the same.

Everyone owes it to themselves and their dependants to get their Will right. Doing so requires having a clear understanding of how Wills work and how to avoid common pitfalls.

In this blog, the RCT Law Wills and Estates team answers your most Frequently Asked Questions.

1. What is a Will? 

A Will is a written document that sets out how your Estate is to be distributed after you die. It can also contain other non-legally-binding directions, such as wishes for funeral arrangements and guardianship of minor children.

2. What is my ‘Estate’?

Your Estate comprises any real and personal property that you own as at the date of your death. For example, this would include any real estate, cash, shares or investments that you own at the time of your death. It is important to note that some assets will not form part of your Estate. This includes any assets held jointly with another person. It can also include superannuation balances and death benefits. For more information on assets that fall outside the Estate, see our article: Will my Will cover all of my assets?

3. What happens to my assets if I die without a Will? 

If you die without a Will, Section 70A of the Administration and Probate Act 1958 (Vic) (‘Administration and Probate Act’) says that the Laws of Intestacy will apply. This legalisation provides a hierarchy of the persons entitled to benefit from your Estate and a formula setting out how it must be distributed. Without a Will, you, nor your family, will have any control over how your assets are distributed. 

4. Does my Will have to be in writing? 

Section 7 of the Wills Act 1997 (Vic) (‘Wills Act’) sets out the requirements for execution of a Will. A Will is not validly made unless it is made in writing, signed by the Will maker or at the Will maker’s direction, and at least two witnesses attest and sign the Will in the presence of the Will maker. To find out more about what happens when Wills are not executed in accordance with these requirements, see our recent article: What is an informal Will?

5. Can I write my own Will and, are ‘DIY’ Will kits legally valid? 

Even if the requirements for execution are fulfilled, it does not necessarily follow that every provision in the Will will then be valid. Proper Will construction is critical to the full and complete operation of the intentions the Will seeks to fulfil. Section 70A(1)(b) of the Administration and Probate Act says that the Laws of Intestacy will apply in the event “a person dies leaving a Will which does not effectively dispose of the person’s Estate wholly or partially”.

For this reason, precaution should be taken when making a home-made Will or using a DIY Will kit.

Make sure the provisions in your Will are validly written and get legal advice to do so. For more information on the pitfalls of DIY Will kits, see our article: The dangers of DIY Will kits and homemade Wills.

6. What is an Executor and do I need to appoint one in my Will? 

An Executor is the person appointed in your Will that is responsible for the administration and distribution of your Estate. In practice, their role involves making the necessary funeral arrangements, dealing with your personal effects, collecting all your assets, paying any debts you may have (including funeral costs, taxes, and costs associated with the administration and distribution of the Estate), and distributing your Estate in accordance with the directions in your Will.

Failure to appoint an Executor will not invalidate your Will, but it does mean that someone will have to volunteer to take on the role of the Administrator of your Estate. Usually, the primary beneficiary or beneficiaries would be the appropriate applicants.

Accordingly, it is possible that the person entitled at law to apply to become your Administrator may not be the person you would have elected for that role. By appointing an Executor or Executors in your Will, you as the Will-maker are able to elect the person or persons entitled to handle the administration and distribution of your Estate. 

7. Do I have to give my Executor a copy of my Will? 

No. You are not under any obligation to disclose the contents of your Will to anyone, not even to your Executors. However, they will, of course, become privy to its contents upon your death for the purposes of fulfilling their role as your Executor. We tell our clients that while they are not obliged to provide their Executor with a copy of their Will, it is advisable to inform your Executor that you have appointed them to handle your affairs after your death.

It is also important to notify your Executor of the location of your original Will (i.e. with your solicitor, in your safety deposit box, etc.) so that they know where to locate it when the time comes.

8. Can my Will expire or become invalid? 

Wills do not have an expiry date and in effect can be valid indefinitely.

However, there are certain circumstances where a Will can be wholly or partially invalidated. An example of this is when the Will maker marries after the date of the Will. Under Section 13 of the Wills Act, if your Will is not explicitly made in contemplation of marriage, the Will is revoked upon any marriage that takes place after the date of the Will.

In the event of divorce, Section 14 of the Wills Act says that the appointment of your spouse as your Executor or any disposition in your Will to your spouse will be revoked. For the purposes of the distribution of your estate, your Will would be read as though your spouse had predeceased you.

However, it is important to note that this principle does not apply upon mere separation and only applies upon the legal dissolution of a marriage. In addition, your divorce will not revoke the appointment of your spouse as trustee of property left by the Will upon trust for children you have together. You may well wish to leave your estate to your children but not want your former spouse to manage their trust accounts.

For these reasons, if you are intending on marrying or have been recently married, or if you have recently separated from a partner or been divorced, you must update your Will as a matter of priority. As a ‘rule of thumb’, any change in your relationship status should prompt you to obtain updated estate planning advice from your solicitor.

To know more about the effect of marriage and divorce on your Will, see our article: The effect of marriage and divorce on your Will.

9. Can I revoke my Will if I change my mind? 

There are a number of ways a Will may be revoked. As prefaced above, marriage will automatically revoke a Will where that Will does not specify that is has been made in contemplation of marriage. Divorce will invalidate any specific dispositions to your spouse and any appointment of your spouse as your Executor (although your spouse would still be trustee for children you have together).

However, you can also elect to revoke your Will at any point in time, so long as you have legal capacity to do so.

The most common method of revoking a Will is by making a new one. The creation of a later valid Will that expresses the requisite intention to revoke will successfully revoke all prior Wills. A Will may also be revoked by setting out in writing your intention to revoke your Will, or by destroying the original copy of the Will.

The best of the three options is to make a new Will containing an appropriate revocation clause. Whilst you may intend to revoke your Will by simply destroying it, there may be confusion if copies of the Will are still in existence.

10. Do I have to leave my assets to my spouse or children? 

When you make a Will, you have the freedom to leave your estate to whomever you choose, whether that be your family, a charity or a friend. This freedom is what we refer to as ‘testamentary freedom’. However, from a legal perspective, there may be certain persons in your life that you may have a moral duty to provide for. These ‘certain persons’ will commonly include your spouse and children. In the event that you choose to exclude them or significantly limit their entitlement under your Will, your estate may become vulnerable to a claim against it.

For this reason, it is important to seek legal advice when drafting your Will, and to ensure that you give full and complete instructions to your solicitor. This will better enable your solicitor to advise you on who may have a claim on your Estate and, how to structure your Estate Plan accordingly.

For more information on who can challenge a Will, see our article: Feeling left out of a Will? Here’s what you need to know about legally challenging a Will.

11. How often should I review my Will? 

While a Will may not have an expiry date, estate planning is an ongoing responsibility. Your Will should be reviewed regularly and at the advent of different life stages.

We recommend that our clients read over their Wills as frequently as once yearly. This is important to ensure that you remember what you have written and are able to satisfy yourself that your Will continues to be reflective of your wishes. 

The other benefit of the regular reading of your Will is that it may prompt you to consider making alterations or obtaining updated advice in light of a change in your circumstances since your last Will.

In addition to regular reading of your Will, it is important to obtain updated legal advice at least every five years. In addition to possible changes in the law since your last Will, there may also be changes in your personal or financial circumstances that impact your Estate Plan. For these reasons, it’s important to check in with your Estate planning solicitor every so often to discuss the appropriateness of the dispositions in your Will. 

There are a number of life circumstances that should prompt you to review your Will and obtain updated Estate Planning advice, including but not limited to:

1. A change in your relationship status
2. The birth of a child
3. The death of a beneficiary or Executor
4. A change in your assets
5. When your children reach adulthood.

For more information on when you should review your Will, see our article: The 5 golden rules for when you should renew your Will.

12. Where should I store my Will? 

Your Will should be kept in its original condition and in a place easily accessible by your Executor.

This means that your Will should ideally be kept in a fireproof safe, away from moisture, and without anything attached to it, including paperclips or bulldog clips.

It should also be kept in a place readily accessible by your Executor. Accordingly, it’s important that your Executor is informed of its location, even if you don’t disclose its contents.

Keeping a Will at home is always risky and is not recommended. A safety deposit box at a bank or in your solicitor’s deed safe are more appropriate options as there is less likelihood of your Will being damaged, destroyed or misplaced.