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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