Your Will is one of the most important documents you will ever do. A Will outlines your wishes with respect to distributing your belongings after you die and ensures your final wishes are recorded and most importantly that your loved ones are left with no doubts about your wishes around the distribution of your Estate. It effectively speaks for you when you are no longer able to.

What if I’m living in a defacto or same sex relationship and I die without a Will?

If your partner can satisfy the legal requirements proving the relationship, they may be entitled to share in your estate on your death. The necessity of proving the relationship can result in additional expense and distress at a time when they are grieving. It is much easier to draft a Will naming your partner as a beneficiary.

Where should I keep my Will?

Most people realise the importance of making a Will. However, a Will can only be used if it can be found when required. It is important to store your original Will in a safe place. It’s a good idea to tell someone close to you where your Will is stored. There have been many instances where family and friends were aware that a Will existed but they were unable to locate it when it was required.

When you make a Will with NSW Trustee and Guardian, your original Will is held free of charge in our fireproof safe. You will receive a copy for your own records. This ensures your Will is not misplaced and is able to be easily located when required.

Who can contest my Will?

While you are entitled to leave your assets to anyone you wish, in some circumstances, friends or relatives who believe they have not been sufficiently provided for are entitled to contest your Will.

People who can contest your Will under Succession Act 2006′ are not restricted to your spouse and children. Claimants can include a de-facto partner, any other dependants or a former spouse. The person needs to convince the Court that you failed to make adequate provisions for their maintenance, education or advancement in life.

An increasing number of people now have complicated family structures such as blended families, same-sex relationships and second marriages. This may increase the likelihood of your Will being contested.

What Happens If I Don’t Have A Will?

What happens to my assets?

If you die without making a valid will, you leave what is known as an “intestacy”. This means you have not validly disposed of some or all of your assets.

Many people believe the Government takes their assets if they die without a will. This isn’t true. It could only happen if you have no living next of kin. However, if you die without a will, your assets will be distributed according to a legal formula. This might mean that your assets do not end up with the person you would have chosen.

What about defactos and their children?

As far as your children are concerned, they do not have to be born from a legal marriage to share in the distribution of your assets. All children share equally in your assets if you die without a will.

If you leave a de facto spouse (and no children) the de facto inherits the whole of the estate. Note, the definition of de facto has changed. From 24 September 1999 a de facto spouse includes a person who:

• was the sole partner of the deceased person; and
• was not a partner in another de facto relationship.

This means that same sex couples may now have entitlements when their partner has died without a will.

If you leave a de facto and children, the same formula applies as for a spouse and children – in other words, de factos will have the same rights as a married spouse. Where the deceased is survived by a de facto and a spouse, it partly depends on the length of the relationship with the de facto, and whether there are children from the de facto relationship.

Who can witness me signing my will?

When making your will, you must sign it in the actual presence of at least two witnesses. Each witness must sign and add their complete name and address. Adding occupation may also make it easier to find the witnesses if necessary in the future.

The will must be made by you of your own free will, without pressure from anyone else.

Why is It Important to Review your Will?

It is also important to revisit your Estate Plan whenever there are any major changes in your circumstances so that any necessary changes can be made to ensure the Estate Plan is relevant to your circumstances at that point in your life. Some examples of those changes might be:

• Marriage;
• Separation or divorce;
• Starting a de-facto relationship;
• Having children or grandchildren;
• Death of an Executor or Trustee; and
• Death of a Beneficiary.