During our lives we do whatever is necessary to ensure that our family are adequately provided for. However, we often forget to think about the consequences for our loved ones in the event that we were to pass away without a will. Whether you feel that a will is not necessary or you have pushed the idea out of your mind because you deem it too morbid and too depressing to think about, the reality is that preparing a legally valid will is something we need to carefully consider.
If we were to pass away unexpectedly, we would no doubt want to ensure that our loved ones were left with adequate provision to ensure that they were able to take the time to grieve and come to terms with our passing. We would not want them to be burdened with the unnecessary stress and cost that would follow in the event that we had not prepared a legally valid will when the chance presented itself. Unfortunately, however many people do not have a will, or where they do have a will it is invalid due to a change in the person’s personal circumstances or a lack of adherence to the rules in this area of law.
What is a will and how do I ensure it is valid?
For those not familiar with the term, a will is a legal document in which you are able to detail your wishes with regards to who is to receive your assets when you pass away i.e. your house, bank accounts and personal property. In your will, you are also able to cover issues such as guardianship of minor children and express your wishes with regards to burial and cremation.
In order for your will to be legally valid in Queensland there are a number of rules that must be adhered to, some of which are that:
- The person making the will, being the testator, must be at least eighteen years of age;
- The testator must have testamentary capacity, meaning that he or she must be able to fully understand the nature of the document being prepared;
- The will must be in writing; and
- It must be signed in the presence of two witnesses who are not beneficiaries to the will, both being present at the time the testator signs the will.
Unfortunately where a will is not correctly drafted or where it does not adequately provide for a certain family member, the will can come under Court scrutiny. By way of example, common questions that arise for the Court’s consideration include:
- Did the testator have testamentary capacity;
- Was the testator coerced or forced into making the will;
- Has the will been tampered with;
- Is the will invalid due to marriage or divorce; and
- Has the testator made adequate provision for his/her immediate family.
What happens if I do not have a will?
In the event you pass away without having made a legally valid will or where your will is found by a Court to be invalid, you will be considered to have died intestate. Under these circumstances, your family would need to go through the expense of making an application to the Court. The Court will apply the rules of intestacy to determine how and to who your assets should be distributed. Although spouses and children are at the top of the list, if you are not in a spousal relationship and/or you do not have children, it may well be the case that an estranged family member or family member you would have preferred not benefit, will actually end up receiving your assets.
It is important to seek the advice of a legal practitioner when preparing a will to ensure that the document is legally valid. By receiving legal advice and having your will drafted correctly, you will be better placed to ensure that your wishes are not challenged and that questions are not raised as to the validity of the document. You can find more information on this topic on our website, and should you need assistance, please contact our office via the various options on our Contact Us page.
*The contents of this article do not replace independent legal advice, and may not be relevant in all Australian jurisdictions.