Things you need to know
Simple Wills - complex
problems
Very often it comes down to the proposition that a
"simple" Will produces complex problems and a "complex" Will
produces simple problems!
Taking the easy option of doing what people
sometimes refer to as a "simple" Will can often lead to complex
problems when it comes to the actual workings of the Will and the
administration of the estate. On the other hand, spending
some time and effort in getting a clear understanding of all of the
issues and drafting a Will to take account of these means that the
Will takes effect as desired and the administration of the estate
is likely to be "simple" (i.e. straightforward).
This is not just true for Wills, it is the same for
most things that involve the law. Doing a "simple" job simply
means not examining the situation in detail. Then, when the
Will takes effect, the details must be dealt with and all the
problems come to the surface.
Problems can arise if someone takes the approach
that doing a "simple" Will means not doing a detailed assessment of
their assets and circumstances and ensuring (with the assistance of
professional advisers) that they have an understanding of the
associated legal, financial and other implications. As
always, the devil lies in the detail.
Death will come to you and your family members,
just the same as everyone else. It is one of the few things
that is certain in life! It is just a question of when.
Given that at some stage it is inevitable, isn't it worth planning
for?
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You
must be over 18 years and have testamentary capacity
In order to make a Will you have to be over the age
of 18 years. Further you need to have testamentary
capacity. If there is any doubt about the existence of
testamentary capacity, then appropriate medical assistance may be
required to resolve that issue.
People of all ages should make a Will. In the
early years when family relationships are uncomplicated and assets
few, the task is often straightforward. As time goes by,
changes occur and account must be taken of these changes.
Read about Wills and Estate Planning through different
phases of life.
Many people leave it until too late and there is a
loss of testamentary capacity. As age increases the capacity
to deal with such matters diminishes. These days many people
will live for a considerable number of years after they have lost
testamentary capacity and it is important that such matters be
planned for well in advance.
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You should seek
professional assistance
The making of a Will or Estate Plan should not be attempted
without the assistance of professional advice. It can be a
complicated area and, generally speaking, there are matters and
consequences that clients are not likely to appreciate without the
benefit of professional assistance.
Professional advisers can make suggestions and recommendations
that may be quite simple and yet avoid substantial problems that
might otherwise arise.
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A
Will does not necessarily deal with all of the consequences of
deaths
A Will can only deal with matters which the law
permits a Will to deal with. There will often be matters and
consequences that result from your death that a Will cannot deal
with. It is important to appreciate these matters and to
consider what actions may need to be taken to ensure that your
intentions are implemented.
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What
revokes a Will?
Generally, marriage and divorce will result in the revocation of
a Will that has been made.
Generally, subsequent testamentary acts will revoke earlier
testamentary acts. In certain circumstances a revoked Will
can be revived.
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Right to revoke and
regular review
The Will should be reviewed every two or three years and
certainly when there are changes to family relationships and
financial circumstances.
A Will can always be revoked and it does not represent a binding
commitment to a particular distribution of your assets unless there
is a contract to do so.
Your Will should be reviewed regularly to take account of
changes to the law as well as changes to your personal
circumstances.
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Enduring powers of
attorney
It is usually appropriate to consider the situation regarding an
enduring power of attorney in conjunction with a Will and Estate
Plan. This is so even though they deal with different
situations.
An enduring power of attorney is a document by which you appoint
an attorney to make financial and legal decisions on your behalf
and generally to act on your behalf. The difference with this
statutory form of attorney, compared to a general power of
attorney, is that it can have effect even after you lose legal
capacity.
It is important to appoint a completely trustworthy
person who has both the time and the skills to carry out such a
function.
The Office of the Public Advocate has an enduring power of
attorney information kit (including the form) available for
download on its web site -read the EPA information kit
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Your Will is a personal
matter
I recommend that people attend an interview with me alone to
settle the terms of their Will. It is up to each person to
decide what they provide for in their Will without pressure from
any other person whether such pressure is applied directly or
indirectly.
Often spouses will come to an interview together. This is
particularly so where they wish to make reciprocal Wills.
Sometimes people come with another relative. It is always
open to you to do this. The warning is that it may inhibit
discussions concerning your Will by reason of another person being
present.
I recommend that there are many aspects of a Will which should
be discussed with members of the family as it is easier for the
person making the Will to make decisions that are in keeping with
their overall desire to make for easy administration of the estate
and providing appropriate benefits to family members. This
said, it is recommended that people see me individually and there
can be other discussions with members of the family in appropriate
circumstances.
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Mutual
Will (contracts to make Wills)/Reciprocal Wills
Often spouses will make Wills together and often they will have
similar provisions and similar patterns of distribution.
There is a difference between Wills which are "reciprocal" and
"mutual wills". Mutual Wills are Wills combined with a
contract not to change the Will as it is made in consideration of
another person making a Will on certain terms. Generally, I
advise against making mutual wills. In some circumstances
they can be useful but need to be carefully thought through.
If you particularly want to have Mutual Wills, or they are
necessary, it is a matter that you will need to discuss with
me.
Mutual Wills are Wills that are typically made by a husband and
wife who agree not to alter their Wills during their lives and
after the death of one of them. Whilst both of the parties
are alive, a change to a Mutual Will can only be done with the
consent of the other.
After one party dies, the survivor is bound by the terms of
their Will to dispose of their assets as has been previously
agreed with the party who has died. Whilst the survivor
cannot be prevented from changing their Will, the effect of the
Mutual Will is to create a binding contract which will continue to
bind the person's estate even after death.
Reciprocal Wills are often made by husband and wife where the
essential terms are the same. However, there is no contract
to maintain the Wills in those terms.
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Delegation of testamentary
power
You are not permitted to delegate to others the power to decide
how your estate is to be disposed of. However, you can confer
on your executors a power of selection and apportionment among a
prescribed class of beneficiaries.
The rule against delegation of testamentary power does not apply
to charitable gifts.
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Conditional gifts
Conditional gifts should be avoided if at all possible. A
conditional gift is where a gift is made upon condition of some
event occurring. If conditional gifts are to be considered
they need to be carefully thought through and drafted
appropriately. It will be important to get professional
advice if you wish to make conditional gifts.
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Life
interests
The creation of life interests should be avoided where
possible. They need to be carefully drafted to ensure that
the life tenant has their interests met along with the remainder
beneficiary. Finding the right balance can sometimes be
difficult. As it is hard to predict future situations, life
interests are difficult to draft. Also, they raise particular
capital gains tax issues.
The creation of life interests can be useful in some
situations. They do, however, require careful consideration
and professional advice is essential.
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Gifts to
unincorporated associations
Gifts to unincorporated associations should be avoided.
One of the difficulties is finding someone who is able to give a
discharge to the executors.
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Execution of your Will
It is important to ensure that a Will is properly
executed. There are some particular requirements that the law
requires for a Will to be valid. For instance, neither a
witness nor a person who is married to a witness may benefit under
the Will. If these rules of execution are not properly
followed, problems may arise in obtaining a grant of probate.
Care needs to be exercised in ensuring that your
Will is correctly executed. If I prepare your Will, I
recommend that its execution is witnessed by me. The
consequences of doing it incorrectly can be substantial and can add
to the time and cost of obtaining a grant of probate.
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Attachments to Wills
Do not attach anything to your Will. The reason for this
is that it may lead to a suspicion of the existence of other
testamentary documents.
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List of
assets
All information and important documents concerning your assets
and liabilities should be readily available to your executor.
If adequate records are available and accessible by your executor,
it makes administration of the estate that much easier.
You should keep with your Will and other records, a
list of assets to assist the executors and for capital gains tax
purposes. Do not attach this to the
Will.
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Safekeeping of your Will
The executor should know where the original Will is kept.
The Will must be kept in a safe place.
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Amendment of your Will
For the same reasons that it is appropriate to seek professional
assistance with making a Will, you should seek professional
assistance about amending your Will. I strongly recommend
that you do not attempt to do it yourself.
The use of codicils is not usually recommended. It is
usually better to produce a new Will containing any of the changes
you wish to make.
The overall plan paid for the future will often include that the
existing will is to be changed upon the happening of a future
predicted event. The range of possible events can be very
large indeedIt could be when a beneficiary reaches a particular
age. It could be when a particular item of property is sold.
You can think about the future make predictions about
circumstances that are likely to occur and will result in changes
to your existing WillThis is just all about good planning.
What needs to be considered as you get older is the
increasing risk of not having testamentary capacity such that you
cannot change your Will when these future circumstances do occur!
As age increases the lost a testamentary capacity becomes
more likely.
One potential way to deal with the issue is to appreciate the
jurisdiction regarding "statutory wills". The Supreme Court
has jurisdiction in respect of the Wills of persons who lacked
testamentary capacity. It includes the power to amend in
certain circumstances.
It is a matter upon which advice should be sought.
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Destruction of Wills
To avoid confusion, a Will which has been revoked should be
marked as being revoked. The old Will should not necessarily
be destroyed, particularly if there may be any doubt about validity
of the new Will. In some circumstances the old Will may be
relevant.
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Recommended approach
It is my view that it is important to make
a detailed assessment of your family and financial
circumstances. Then it is necessary to come to an
understanding of the legal and other issues that apply to your
situation and the options that may be available to
you. You are then able to make informed decisions
about the contents of your Will.
It is my task to apprise you of the legal
and other issues involved; to make you aware of the options
that may be available and make recommendations as to how your
objectives can best be achieved.
At this stage, armed with all of the necessary
information, you are able to make decisions about the content of
your Will. It may be that the situation regarding your
assets, circumstances and options available to you are
straightforward. If this is so, the preparation of your
Will is likely to be similarly straightforward.
I recommend that everyone should do one of
the "Standard" Will options. The reason for this is
that it involves giving consideration to
all relevant matters to see whether they may be
applicable to your circumstances. It also involves
consideration of your assets.
The "Basic" Will options substantially
reduces the matters for consideration in the preparation
of your Will. These "Basic" options should
only be used if you are absolutely
sure that they are applicable to your circumstances.
Further, they should only be used if you do not want me to
investigate and advise on any of the broader issues and options
that may be available to you. If you have any
doubts about whether one of the "Basic" options is applicable, I
recommend that you use one of the "Standard" Will options.
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