A Will is important
because it sets out your testamentary intentions as to who you want to
give your assets and property to in the event of your death.
Without a Will you die intestate. If you die intestate the
Administration Act 1903 sets out how your estate is to be divided and to
whom it is to be given.
Q2. Who should you appoint
as executor of your Will?
A
The function of the
executor is to administer the estate.
You should appoint no fewer than two executors just in case one is
unable to act as executor. It is usual for the main adult beneficiaries
in the Will to be the executors of the Will. Your executors should be
asked if they are agreeable to taking on this role before being included
in the Will.
The executor’s powers are governed by the Administration Act 1903 and
the Trustees Act 1962.
Q3. Things you should
consider when making a Will
A
A Will-maker is called a
Testator if he is male or a Testatrix if she is female.
A pecuniary legacy in a Will is a gift of money to a beneficiary. You
should be aware that if there are insufficient liquid assets in your
estate to pay the legacy other assets will have to be sold to meet the
shortfall. This could result in other beneficiaries in the Will
receiving less then intended.
Specific gifts of personal property are quite common inclusions in Wills
however they can create difficulties. For example, is an item of
personal property the subject of a specific gift is disposed of during
the testator’s lifetime the gift will fail.
A gift of residue or a gift of the whole estate means a gift of what is
left in your estate after debts have been paid and specific gifts and
pecuniary legacies have been made.
Joint tenancy and Tenancy in Common:
If you own property with other people, it is important to know whether
you own the Property as tenants in common or as joint tenants.
• Joint tenants possess a right of survivorship, which means that the
interest of a deceased joint tenant passes to the surviving joint
tenants. This means that a joint tenant does not have an interest in the
land that can be passed to another person through a Will unless they
become a sole owner because the other joint tenants have predeceased
them.
• Tenants in common do not possess a right of survivorship and on their
death their interest passes according to the terms of their Will or if
there is no Will according to the intestacy provisions of the
Administration Act 1903.
Testamentary Trusts
Consideration should be given to the establishment of testamentary
trusts in certain circumstances such as if you have young children or if
members of you family are disabled. It enables the testator to postpone
the vesting of the trust until a child has received an education or, in
the case of a disabled person, that person has recovered to the extent
that he or she is able to manage their own financial affairs.
Testamentary discretionary trusts also currently enjoy certain taxation
benefits. Tax on income passing to a minor beneficiary under a
testamentary trust is at a lower marginal rate and moving assets into a
testamentary trust does not amount to a disposal of the asset and
therefore may not attract capital gains tax.
You should obtain advice from your financial adviser about the taxation
advantages of establishing testamentary trusts as taxation rules may
have altered at the time of making your Will.
Q4. When should I consider
doing a new Will?
A
You should review your
Will frequently particularly in the event of the following occurring:
• There is a substantial change in your financial situation;
• The death of an executor;
• The death of an intended beneficiary;
• A new arrival in the family;
• You separate from or divorce your spouse;
• You remarry;
• You enter into a de facto relationship;
• There is a change in legislation such as death duties.
Q5. How do I revoke my
Will?
A
A subsequent marriage will
automatically revoke your Will.
If you execute a new Will you should put a line through each page of the
old Will and write on every page the words “Revoked by Will
dated_______”.
You should obtain all copies of the old Will from executors and other
parties that may hold copies.
Q6. Where should I keep my
Will?
A
Your Will should be stored
in a safe place and the executor should know where the original Will is
kept.
The testator’s copy should be kept with the testator’s important papers
at home and a note should be made on the envelope containing the copy of
the Will stating precisely where the original Will is kept.
Q7. How should my Will be
signed and witnessed?
A
A Witness to the Will
should not be a beneficiary or the husband or wife of a beneficiary
under your Will. Any gift to a beneficiary who is also a witness to the
Will (or whose husband or wife is a witness) is void.
The Will must be signed by you, in the presence of two witnesses,
strictly as follows:
(a) you and both witnesses must sign your usual signature using the same
pen;
(b) you must sign on each page where indicated;
(c) you must insert the date of signature;
(d) each witness must then sign each page where indicated;
(e) each witness must, in addition, on the last page print below his or
her signature his or her:
(i) full name;
(ii) residential address; and
(iii) occupation;
(f) all the signatories, that is you and both witnesses, must sign as
directed above in the presence of each other and none of you may leave
the room (or place of signature) until the signing of the Will has been
completed in accordance with the above directions.
Do not at any time pin or clip anything to the Will or make any mark on
it that would indicate that something has been attached to it.
“The information you obtain at this site
is not, nor is it intended to be, legal advice.
You should consult a lawyer for individual advice regarding
your own situation.”
