creating a will

Creating your Will is a task that often gets put off. However, it is one of the most important things you can do for your loved ones. It can actually be a rewarding experience that puts life into perspective.

Without a Will, you are effectively forgoing your right to have a say in how your assets are distributed. This makes it harder and more costly for your loved ones. Dealing with your assets and can cause immense stress for your family during a difficult time.

These uncertain times have prompted Australians to think about their life planning and finances. Many APS members and clients have taken this time to create or update their Will and Power of Attorney.

Creating your Will

If you are thinking about updating or creating your Will, here are some key facts that you should consider before getting started.

  1. Each State or Territory has different rules in regard to making Wills. It is important that you check the correct regulations in your state.
  2. All Wills must be witnessed by at least 2 adult witnesses.
  3. In some states, it no longer matters if a beneficiary under a Will is also a witness to the Will, but in other states, this could result in the beneficiary losing his or her Will entitlement.
  4. In some states, the witnesses do not have to sign the Will in each other’s presence, but in others they do.
  5. Marriage (and, in some cases now, entering into a registered relationship) generally revokes a Will, unless the Will is made in contemplation of marriage.
  6. Divorce (or, in some cases now, ending a registered relationship) does not (except in Western Australia) revoke a Will, however, the Will is read as if the divorced spouse had died before the Will maker.
  7. Separation does not affect a Will, even if the Will continues to benefit a separated spouse.
  8. Having the Will maker and witnesses use different pens will not actually invalidate the Will, however, it will make it more difficult and more costly when it comes to proving the Will.
  9. All States and Territories have specific legislative provisions covering:
    1. Rectification of a Will (where there is some obvious error),
    2. Informal Wills (documents that do not comply with the relevant Will making rules),
    3. Statutory Wills (Wills made by the Court for persons who do not have legal capacity – e.g. the disabled).
  10. In some regions, you can make an oral (unwritten) Will if you are a member of the Australian Defence Force on active duty.

Need help?

Although there are plenty of considerations to think about when creating a Will. It doesn’t have to be a complicated process if you have a lawyer to help you through the process. Seeking the assistance of someone with the relevant qualifications, knowledge and experience will minimise the risk of your Will not being effective or not achieving the desired result as well as the risk of successful challenges being made against your Will.

If you are in the process of creating or updating your Will, the team at APS Wills & Estates are here to help you every step of the way. Click here to find out more or call 1300 131 809.

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