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  • Writer's pictureAmanda Sommerville

Six Things to Know About Wills

If you’re thinking of having a Will prepared, there are some things it might be helpful for you to know while you think about what you would like your Will to do. Even if you already have a Will, it’s good to get it out every few years (or after a major life event) and think about whether the document still does what you need it to.

1. De facto couples should be careful not to accidentally invalidate their Wills

with a wedding

If you’re in a de facto relationship at the time you sign your Will, it is likely your Will shall provide for your de facto partner in a way appropriate to your situation.

If your Will doesn’t have a paragraph in the document stating the Will has made in contemplation of you marrying your de facto partner, and you both get married after your Wills were prepared, the act of getting married will invalidate your Will.

This is really problematic for de facto couples, as they often marry years after having Wills prepared. If they even think about their Wills later on, they don’t worry about redoing them, as they think their Wills are still in effect and provide for each other in the way they intended. If you married without the ‘in contemplation’ clause in the Will, the act of marriage will invalidate your Wills. This unintended effect could result in some terrible consequences to the surviving partner after the first of the couple dies.

If you’re in a de facto relationship at the time of having Wills prepared, I always recommend that you put an ‘in contemplation of marriage’ clause in the Will. It doesn’t matter if you never get married, but it provides protection to the document if you do.

2. What happens if my Executor dies or doesn’t want to accept the appointment?

The Executor is the person you nominate in your Will to carry your Will instructions and administer your estate. The Executor does things such as paying your liabilities and debts from estate funds, calling in your assets and distributing your estate to your beneficiaries.

A lot of people appoint more than one Executor in their Wills. You can appoint a number of people to act jointly together, or you can appoint substitute Executors who only take on the role if the person nominated before them can’t or won’t take on the role.

It sometimes happens that by the time the will-maker (called the Testator) dies, none of the nominated Executors are willing or able to take on the Executor role. If that happens, the Will has no Executor.

My clients are often concerned that this means their Will shall be invalidated and of no effect. This is not the case. What will happen, is the rest of the Will is still effective, but without an Executor.

In this situation, an ‘Administrator’ will be required. An Administrator is very similar to an Executor – the main difference being the person wasn’t appointed to the role by the Will.

Anyone with an interest in the estate can nominate to be appointed as the Appointor.

The Appointor is generally one of the main estate beneficiaries.

3. Appointing a Guardian for my Young Children – will it definitely work?

If you choose to, you can nominate a Guardian for your children while they’re aged under 18 years. In Wills, any child aged under 18 is called an ‘infant’.

It is generally a good idea to nominate a Guardian for your infant children if you have wishes about who should raise your children if you die. This can even be in relation to future children that haven’t even been born at the sign you signed your Will.

While nominating a Guardian in your Will is a good way of making your wishes clear after you die, there is no guarantee the nomination will actually be effective.

If you die, the first person to be considered as the appropriate Guardian of your infant children will generally be the other parent of that child – unless there is good reason why they are an inappropriate option – for example, they are also deceased or you have a Family Court order giving you sole parental responsibility for that child.

It is possible that after you die, someone other than your nominated Guardian considers themselves the appropriate carer of your infant children. If this occurs, the other person (generally a family member) can make application to the Family Court for parental responsibility of your children.

In that situation, the Family Court will consider the competing claims for the responsibility of the children, including things such as the best interests of the children, who can best facilitate relationships with the children’s remaining family, who can best facilitate the children continuing to be a part of their culture and religion.

The Court should also take into consideration who you appointed as Guardian. If you have firm views that you do not want your children raised by certain family members (for example they follow a different religion to you and that’s important to you), then it can be useful to also state in your Will why you do not want your children to live with certain persons.

Once the Family Court has deliberated, it can then make orders as to where the children should live, and those orders will override the Guardianship appointment in your Will.

4. I want a clause in my Will saying no-one can contest it

It’s great idea, but it’s unlikely to be enforced by the Supreme Court.

In Western Australia, the Family Provision Act 1972 lists the categories of people who can contest a Will – this is known as ‘standing’. Once standing has been shown, the question will be whether you have made proper provision for the claimant, taking into account a number of factors such as family dynamics, other potential claimants, etc.

Rather than putting a clause in your Will which is unlikely to work, it is better to get good advice about how your assets are structured and held, as well as having a quality Will prepared.

5. Where should I store my Will?

There is no official ‘Wills register’ in Western Australia. That means there is no standard place where everyone should store their Will. Wherever you choose to store your Will, make sure it is a safe place that is accessible to your nominated Executors should something happen to you unexpectedly.

If you have your Will prepared by a lawyer, most lawyers will look after your Will for you in their safe custody facilities. Your accountant or financial advisor might also offer this service.

If you have your Will held with a trusted adviser, I always recommend that you let your Executors know you have had a Will prepared and give them a business card belonging to the business holding the original Will.

6. Should I give my Executor a copy of my Will?

I don’t generally recommend that you give your Executors a copy of your Will before you die. Doing so can sometimes cause disputes and family disharmony, causing a real headache for you before you even die.

You may also change your Will a number of times in the future, so the version eventually admitted to probate once you die may be very different to the provisions in the Will you currently have. Your Executors don’t need your Will until you actually die and it often only causes you complications doing so ahead of time.

There are many things to consider when getting a Will prepared and afterwards as well. A good quality Will appointment should include a discussion of things such as how your assets are held, the dynamics and potential problems in your family and how to protect your estate so that your assets are distributed in the manner you intended.

It’s worth taking the time now to get your Will exactly how you want it while you can, because your Will could be needed at any time. A well prepared Will should give you peace of mind your lifetime, and great assistance to your loved ones after your passing.

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