In the past, many people’s first reaction to the word ‘will’ was that it was something to consider only when they were older, or that making a will early was necessary only for people with substantial assets or complicated family relationships.
As lifestyles, family structures and types of assets become more diverse, however, people are increasingly making wills at a younger age.
In Australia in particular, more people are recognising that a will is not a document to prepare only in old age. It is an important legal tool for planning ahead for risks and reducing uncertainty for the family.
Whether you have bought a property, have some savings and investments, have recently married or had children, or simply want to clarify how your personal assets will be dealt with in the future, you can consider making a will early.
Making a will is not just for your own benefit. It also helps your family avoid unnecessary disputes, procedures and stress when the time comes to deal with your estate.
Why should you make a will early in Australia?
If a person dies without a valid will, their estate will generally not be distributed in the way their family assumes is natural. Instead, it will be dealt with under the intestacy rules of the relevant state or territory.
This means the eventual distribution may differ from what the person originally intended.
For example, you may want a particular property to go to a particular child, a sum of money in a bank account to go to your parents, or certain personal belongings to go to specific family members. Unless these arrangements are clearly expressed in a valid will, the law will not automatically give effect to the wishes you expressed verbally during your lifetime.
Without a will, family members will also generally need to deal with assets through more complex court or estate administration procedures.
This may take more time and cost more, as well as increase the risk of disputes between family members.
A valid, clear will that reflects your true wishes therefore does more than settle the question of who receives how much property. Its purpose is to minimise uncertainty in the future.
What basic requirements must a valid will meet?
Generally, the person making the will needs to have the necessary legal capacity and ability to make decisions, and must complete the signing and witnessing procedures required by law.
There are usually several basic requirements to consider.
First, the person making the will should generally be at least 18 years old, unless a special circumstance provided for by law applies.
Second, when signing the will, the person should have sufficient clarity of judgment to understand that the document they are signing is a will, the broad extent of their assets, how they want those assets distributed and who may be affected by the will.
The will must also be signed and witnessed correctly.
In many cases, two adults who meet the requirements need to act as witnesses, and the entire signing process must comply with the relevant legal requirements.
These may appear to be mere formalities, but a problem at any stage could result in the will being challenged later and may even affect whether it can be carried out smoothly.
A will is therefore not as simple as writing down your wishes and adding a signature.
Why do many people discover that making a will is more complicated than they expected?
When assisting clients with wills, NS Legal often encounters the same situation: clients initially think they only need to tell their lawyer who should receive the house and who should receive the money. Once preparations begin, they discover that there is far more to consider than they expected.
A will that can actually be carried out does more than specify distribution percentages. It first requires a clear understanding of the asset structure, family relationships, beneficiaries’ circumstances and possible future changes.
For example, some jointly held assets may not be distributed solely under the will.
Superannuation may also be affected by beneficiary nominations, fund rules and other legal mechanisms.
Where there are minor children in the family, guardianship arrangements also need to be considered.
Overseas assets may involve inheritance and legal issues in different countries or regions.
What matters most about a will is therefore not how long the document is, but whether its contents match the person’s actual assets and family circumstances.
How should a reasonably comprehensive will usually be planned?
The first step is to identify the assets.
These usually include property, bank deposits, shares or other investments, interests in companies, personal belongings and some digital assets.
Understanding what you actually own provides the foundation for the next stage of planning.
The next step is to identify the beneficiaries.
Who can receive which assets, whether they will be distributed in fixed proportions and whether substitute beneficiaries are needed should all be as clear as possible.
The more ambiguous the wording, the more likely disputes are to arise when the will is carried out.
An executor also needs to be appointed.
The executor is responsible for dealing with matters after the person who made the will dies. These include identifying assets, paying debts, handling tax or administrative procedures, and finally distributing the estate in accordance with the will.
The choice of executor therefore directly affects whether the estate administration process runs smoothly.
If there are minor children, guardianship arrangements also need to be considered in advance.
Many parents focus only on leaving assets to their children and overlook who would take responsibility for their day-to-day care and guardianship if both parents were involved in an accident.
The language and structure of the will must also be as clear as possible.
Conflicting clauses, unclear concepts or ambiguous expressions such as ‘roughly’, ‘divide equally’ or ‘deal with it according to the circumstances’ may all increase disputes over interpretation later.
Finally, the will must be signed and witnessed using the correct procedure, and reviewed periodically after significant changes in personal circumstances.
What life changes should prompt a review of your will?
A will does not remain unchanged forever once it has been signed.
If life and family circumstances have changed significantly but the will has not been updated, the document intended to provide protection may instead diverge from your current wishes.
Common circumstances that call for a review include marriage, divorce, entering a new relationship, having or adopting children, buying or selling significant assets, changes in company shareholdings and major changes in family relationships.
You should also consider whether an update is needed if a nominated beneficiary or executor has died, cannot be contacted, or your relationship with them has changed significantly.
The purpose of reviewing a will regularly is not to make frequent changes, but to ensure that the document still reflects your actual circumstances.
Three issues people most often overlook
The first is setting out only the broad intentions without dealing with the details.
For example, saying only that your assets should be divided equally among your children may seem clear. But if one child has been living in a particular property for a long time, or some assets have already been gifted to a family member, new disputes may arise when the will is carried out.
Many people have already told their family what they want, but verbal statements do not necessarily have the same legal effect as a formal will.
The second common issue is forgetting to update the will.
Life circumstances, assets and family relationships change. If a will has not been reviewed for many years, the document may become completely disconnected from reality.
The third issue is assuming that all assets can be controlled solely by a will.
In fact, some jointly held assets, certain superannuation benefits, trust assets or interests held through particular company structures may not be dealt with entirely and directly under the will.
The asset structure itself can therefore sometimes be just as important as the contents of the will.
Why does a will need to be considered together with the asset structure?
A good will cannot stand alone, separate from the actual asset arrangements.
If a person’s main assets are held through companies, trusts or joint ownership, preparing an ordinary will alone may not fully achieve the intended result.
Similarly, if most of a person’s wealth is in a superannuation account and the beneficiary nomination conflicts with the will, the eventual distribution may differ from the original plan.
Clients with more complex asset structures, multiple properties, business operations, overseas assets, blended families or minor children therefore have an even greater need to consider their will alongside their overall asset planning.
Effective estate planning is not just about having a will. It is about ensuring that the arrangements for different assets work together.
How can NS Legal assist with will planning?
The NS Legal team can help clients work through their will arrangements based on their family circumstances and asset structure, and assess which matters need to be addressed clearly in the will.
We can assist clients in identifying their main assets, arranging beneficiaries, choosing an executor, addressing guardianship for minor children, and completing the signing and witnessing procedures.
Where there are jointly held assets, superannuation, company interests, trust structures or overseas assets, we can also assess whether an ordinary will can directly control those assets and whether additional legal arrangements are needed.
For clients who already have an older will, we can help review its contents and check whether it still reflects their current family circumstances and true wishes.
NS Legal’s closing remarks
A will is not simply a formal document. It is a legal arrangement that needs to be capable of being carried out in practice.
It records not only how property will be distributed in the future, but also the wish to give family members clear, workable guidance when they one day need to deal with these matters.
Many problems do not emerge on the day a will is signed. They become more pronounced when the will actually needs to be carried out.
If you are unsure whether an ordinary will can fully cover your asset structure, or are concerned that your current arrangements may diverge from your true wishes, you can contact the NS Legal team for a specific assessment.
We can help you consider your will, family circumstances and asset structure together so that the arrangements give effect to your true wishes as far as possible.
Disclaimer: This article provides general legal information only and does not constitute legal advice about any individual’s specific circumstances.
