When I proposed to my wife-to-be over 15 years ago I was disappointed with her answer to my well thought out and poetic proposal – all my childhood years I dreamed of the perfect response to that magical question
“Will you marry me?”
“Yes” should have been the answer, but instead my wife said “I will!”
Little did she know but the importance of having a Will is not only an important element of a marriage, it is crucial for all individuals, all couples, all families and indeed a must for everyone.
Common myths about wills:
A husband and wife can have one Will.
No: Each person must have their own Will, although often they simply mirror each other.
The newsagent sells Will packets for under $50 – Why should I pay a Solicitor to do it?
You might as well buy a lotto ticket for the $50 because there are so many pitfalls which can render the Will ineffective eg. Not being witnessed correctly, guardian for children left out, certain things given to people which you don’t legally own (eg. Property owned as joint proprietors). Solicitors have a wealth of experience to advise you regarding all aspects of a will.
The Executor named in a Will can also sign documents for me if I am unable to do so myself.
Wrong: A Will becomes effective only on the date of death, not when the Will is made. If you want to appoint someone to sign documents when you are unable to so or overseas etc. then you need an Enduring Power of Attorney
You only need one Will during your lifetime.
True. Often we see a Will that was made 20 years ago but is still relevant today. Recently we applied for Probate in respect of a will made in 1968 which was still relevant today. You don’t need to update a Will simply because someone’s address has changed, or a beneficiary changes their married name. Although we like to create broad Wills that allow for children, possible grandchildren, sale and purchase of assets etc. you should check your Will every 2-3 years to ensure it is still valid.
I divorced (or separated) from my spouse and organised a property settlement so I don’t need to change my Will.
Wrong: A Will is void when you get married or when you divorce. If you pass away after separating, your spouse may receive everything you fought so hard to retain. If you die after your divorce, you legally have no Will and again your spouse/partner may be entitled to a large share of your estate.
I already have a family trust, why do I need a testamentary trust??
A family Trust is a distinct entity which operates to provide taxation and financial benefits for you during your lifetime. A Testamentary Trust is contained in your will and provides amongst other things tax benefits for infant beneficiaries, some protection from creditors or spouses of your children and beneficiaries, and enables the continuation of a family legacy or significant asset (the latter is for personal assets not included in the family trust).
Lastly, if you die without a Will it all goes to the government!
I’m glad to say that this is also not true although if it makes you phone me to make/update your Will, then maybe….
No, the truth is that there is a formula adopted for next of kin to inherit your estate, however even in the closest and simplest of families this could lead to inter-family disputes and litigation (ah, the subject of another article!).