How to Make a Will

Who can or who should draft a will?

Many of us feel 'time poor' and important tasks, such as making a will or updating a will, can be overlooked.  But if you do not have a will you will have no say as to what happens to your money, property and possessions after your death (this is determined by legislation).  It also may take longer to wind up your estate and cost more as a result.  Our focus is to assist you to make a will or updating your existing will in order to eliminate problems that may occur after your death.

A person can draft their own will or use a 'will kit'
But a mistake or poor drafting may render the will ineffective or invalid.  Therefore, for peace-of-mind and a modest cost, a lawyer is best placed to draft even a simple will.

Assets in your name only
Your will applies to assets that are in your name only. Your will does not apply to joint assets, trust assets or assets held by your company.

Joint assets
Joint assets owned by you cannot be distributed according to your will. The surviving joint owner becomes the sole owner. For example A & B are ‘joint proprietors’ of their house and have joint bank accounts. If A dies, B becomes the sole owner. If it is not your intention for the surviving party to become the sole owner, you can sever/break the joint tenancy so that each owner owns his/her half share as ‘tenants in common’.

Superannuation proceeds
Generally, assets held in your superannuation are distributed by the superannuation trustee in its absolute discretion. The trustee will generally distribute your superannuation proceeds to your dependents. It is your responsibility to check what the requirements are for each of your superannuation funds because each fund has different requirements.

If you wish to nominate someone to be the beneficiary of your superannuation proceeds, please check with your trustee regarding the procedure. Generally, trustees of superannuation funds that are not privately managed by you, are not bound by your nomination and can pay the proceeds to whoever they think fit. For example, you may nominate your children to be the beneficiary and the superannuation trustee may exercise its discretion to pay the proceeds to your spouse instead.

We also advise you to seek financial advice regarding the most tax effective way to distribute this asset.

Life insurance policies
Generally, the trustee of a life insurance fund must pay the proceeds to your nominated beneficiary. However you must check with that trustee whether this applies in your case. If your life insurance policy is obtained through your superannuation fund, it is likely the trustee is not bound by your nomination. Again each life insurance policy is different. Please check.

Managed funds
When investing in managed funds, please check whether or not the trustee of your fund has absolute discretion regarding distribution of the proceeds. Some managed funds are held by trustees who have the absolute discretion and your will therefore does not apply to such funds.

We do not destroy earlier wills
Our firm's policy is to hold all wills, including your revoked will. If after your death the latest will is found by a Court to be invalid, then your earlier will applies. This is helpful in most cases because if all earlier wills are destroyed, then your assets will be distributed in accordance with legislation as if you died without a will.

However, the content of earlier wills may also cause great family tension particularly when you have reduced the share of a beneficiary. If we hold your earlier will(s), and if you require your earlier will to be destroyed, you must instruct us to return them to you for destruction.

Personal belongings
Due to the increasing number of second marriages whereby the will maker and will maker's spouse/partner have children from previous marriages, and due to an increasing number of disputes in relation to the distribution of the deceased's personal belongings and household items, we suggest that you include in your will all items that you wish to specifically bequeath/give to someone. As these items are generally of considerable sentimental value but of little monetary value, it is not worthwhile for beneficiaries to pay substantial legal fees to argue about these items in Court.

We also suggest that you and your spouse/partner make a list of what items (furniture, jewellery, heirlooms, white-goods) belong to each other and what belong to both of you jointly. Both of you should sign this list. Any items that are not owned jointly will form part of the deceased's estate and are to be distributed according to his/her will. You should also update this list regularly as you acquire and give away items during your lifetime.

Memorandum of Wishes | Statement of Wishes | Letter of Wishes

• A Memorandum of Wishes can be a useful way of providing guidance to your executors, trustees and/or guardians (if you have minor children) as to how you would like your estate to be administered, or how you would like various entities (e.g. companies and trusts) to be managed following your death.
• It is not a legally binding document, but rather an individualised personal document that can (and should) be stored with your Will.
• It can include any directions you wish to leave that you think may assist your executors/trustees/guardians when the time comes.

Our wills, estates and probate lawyers can advise you on how to make a will and are located at both our Melbourne office and our Mount Waverley office, a South Eastern suburb of Melbourne VIC.

Visit our law firm for more.