Man in suit signing document: the importance of having a will

No one expects the worst to happen ... until it does. Then the importance of having a will - or not, as the case may be - becomes glaringly apparent.

Not having a current and valid will can have major consequences on those left behind when you pass away. If you do not have a will, or it is invalid or obsolete, your estate will be distributed according to the rules of intestacy. This may mean your assets are allocated in a way which may not necessarily reflect your own personal wishes, and could even mean your loved ones suffer financial hardship and/or legal complications as a result.

For instance, did you know that if you were to die without a will in place, your assets would not automatically pass to your partner? Everything in your estate would be divided between your partner and your children or parents, using specific formulas as set out in legislation. Therefore your partner may find themselves cut off from some assets, leaving them financially vulnerable. They could lay a claim under the Property (Relationships) Act, however this would be an expensive and convoluted avenue to pursue.

What is the purpose of a will?

A will sets out your specific wishes on how to manage your estate after you die. It gives your executor(s) clear instructions on how to settle your affairs and manage all estate matters in a way that is meaningful and relevant to you.

A will can include:

  • The names of people or organisations you wish to distribute some or all of your assets to, or who you want to provide for financially. You can bequeath money, property, and/or personal belongings which have monetary or sentimental value. You can leave assets to family members, friends, entities such as family trusts, or organisations and charities.

  • Your wishes and instructions for your remains and your funeral. For instance, specifying if you want to be cremated or buried, and preference for burial location or place of ashes scattering. You can give instructions for your funeral service: naming a celebrant or funeral director; requests for special readings, poems and music; a faith-based or non-religious service. You can also include if you consent to your organs being donated, however it is best to also let your loved ones know of this consent as it may be too late by the time your will is located.

  • The names of guardians for your young children. A legal guardian takes on the day-to-day care of your children in the event you pass away. Looking after kids is life-changing, so it is a good idea to have an honest discussion with that person before naming them in the will, making sure they agree to take on the responsibility of care. Even then, a person named as guardian in a will is not legally obligated to serve, so it is prudent to consider naming at least one alternate guardian.

  • The name of your executor. An executor is the person nominated by you to carry out the administration of your estate and to fulfil the terms of the will. There can be one executor named, or several. An executor's role is finished once all assets are distributed, and all expenses and taxes relating to the estate are settled.

How do I get a will?

Wills are only valid if they are properly witnessed, so just writing something down and signing it will not make it legally binding.

Wills can be drafted by lawyers, trustee companies or Public Trust. There are also online platforms which offer templates for wills. Will preparation doesn't have to be pricey, but it does pay to shop around to ensure it gets done right. Otherwise cost-cutting now might result in your will being deemed invalid later - when it's too late.

If you have business assets that you are including in your will, we strongly advise you discuss your wishes regarding these with your accountant. Depending on how these are to be distributed, you could be opening your estate up to major tax liabilities.

At the same time as preparing a will, many people also appoint Enduring Powers of Attorney. An Enduring Power of Attorney is a trusted person nominated by you to act on your behalf in the event you should become mentally incapacitated at any point. They can manage your affairs for you when you are no longer able to.

Remember that both you and your partner need to have your own separate wills. It is not possible to have a "joint" will.

Once you have a will in place, make sure you review it after each significant milestone - such as the birth of a new child, or getting married or divorced - as well as every five years. An existing will is invalidated once you get married, unless that will was made in contemplation of the marriage. If you were to divorce, any provisions made for your ex-spouse in your existing will would become invalid (note, however, this would not be the case if you are merely separated). Also, by reviewing your will you may find what you wanted five years ago is no longer relevant today. It is important that a will is never considered a "set-and-forget" exercise.

Does having a will mean my wishes are followed?

Whilst having a will in place to stipulate your personal wishes is a good start, there are circumstances under which a will could be challenged:

  • On the grounds it is invalid. For instance: the will was not correctly witnessed; the deceased was not of sound mind when they made the will; or they got married after the will was made. In these circumstances the courts may rule a will as invalid, and then either reinstate an earlier will, or distribute the estate according to the rules of intestacy.

  • Under the Family Protection Act 1955. A family member can make a case that the deceased was morally obligated to provide for either themselves or another family member.

  • Under the Property (Relationships) Act 1976. A spouse or de-facto can make a claim for half of the relationship property.

  • Under the Law Reform (Testamentary Promises) Act 1949. Someone can challenge a will if the deceased had indicated they would provide for this person in their will as payment for work performed or services rendered.

In summary …

The time and cost it takes to make a will pales in comparison to the lengthy emotional, financial and legal burdens which may ensue from not having one. The process of administering an estate of someone who died intestate is far more complicated, takes considerably longer, and is likely to cost significantly more in legal and other associated fees.

Making a will is an act of love you can perform now, to protect those nearest and dearest to you.