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Things You Need to Know When Preparing and Executing a Will

A Will is a legal document that specifies a person’s directions for their estate when they die, formally known as a Last Will and Testament. Through a Will, a person can provide directions as to how any of their legal interests are transferred or held for the benefit of their intended beneficiary at the time of their death.

For a Will to be valid in NSW, it must be:

• In writing;
• Dated with the date of signing;
• Signed by the person making it (the “testator”);
• Signed by the testator in the presence of 2 witnesses aged over 18, present at the same time; and
• Signed and attested to by the witnesses in the presence of the testator.

A Will is revoked by:

• The making of a new one;
• A marriage, civil partnership or de facto relationship;
• Divorce, annulment or end of a civil partnership;
• Express revocation;
• The testator burning, tearing or otherwise destroying it with an intention to revoke it; or
• The testator writing on or dealing with it, that satisfies the court of an intention to revoke it.

A Will should be updated in situations such as when:

• The testator marries or enters a de facto relationship;
• The testator separates, divorces, or ends a de facto relationship;
• The testator has children or grandchildren;
• An executor or beneficiary dies;
• A testator buys or sells property; or
• A testator’s financial situation changes significantly.

There is no legal obligation to share the contents of your Will with your family or beneficiaries, so if you wish to discuss the contents with them then it is completely up to your discretion, however it is generally not advisable, considering that your intentions may change in the future. However, it can be a good idea to have a brief discussion with them to inform them where the original Will is held to ease the process of locating the Will when necessary. In terms of the executor of the Will, it is advised to have a discussion with them about whether they agree to be the executor of the estate.

Mutual Wills are legally binding contracts between two parties, often spouses. The testators agree to the terms included in the mutual Wills, with the provision that neither can amend their Will without the express agreement of the other party. When testators prepare mutual Wills, they are distinctly aware of the contents of each other’s Wills. It is not unheard of for a surviving party to attempt to revoke their mutual Will after the death of the first party. In that case, the surviving party is in breach of the agreed contract terms. The beneficiaries of the original Will can apply to the Court to enforce the terms of the mutual Wills.

A valid Will is a written testament that expresses the deceased’s intentions for their estate. It must comply with legal requirements and can include non-binding provisions, such as appointing a guardian for minor children. A nominated executor is responsible for applying for a Grant of Probate from the Supreme Court of NSW to validate the Will and their appointment. While an original Will is required for probate, in some cases, a copy may be accepted if the original cannot be located.

If the original Will is unavailable, an executor may seek probate with a copy of the Will. This process is complex. The executor must convince the Court that the absence of the original does not imply the testator deliberately revoked the Will. They need to provide details about the creation, storage, and diligent search for the original Will, as well as the basis for believing it was not intentionally destroyed.

According to Section 54 of the Succession Act 2006, a limited group of people can inspect or obtain a copy of a Will before probate. The executor or administrator of the estate must provide access to:

• Individuals named or referenced in the current Will.
• Beneficiaries named in a previous Will.
• Spouse, de facto partner, or child of the deceased.
• Guardian or parent of the deceased.
• Individuals eligible to inherit if the estate is intestate.
• Guardian or parent of a minor mentioned in the Will or eligible under intestate succession law.
• Individuals with a claim against the estate.
• Individuals with prior management of the testator’s estate – NSW Trustee and Guardian Act 2009.
• Attorney with enduring power of attorney for the deceased.
• Individuals specified by NSW succession regulations.

A Letter of Wishes can be a useful document to accompany a formal Will in New South Wales.

A testator can use a Letter of Wishes to provide practical guidance to their executor regarding the administration of their estate. It is important to note that a Letter of Wishes is not legally binding in NSW. Executors can choose to disregard any instructions provided in the letter. A Letter of Wishes can be used to explain unexpected bequests or unequal distribution of assets among children or other beneficiaries. If the testator has young children, the Letter of Wishes can express their wishes for the future care of their children. It is important to note that a Letter of Wishes is not legally binding in NSW. Executors can choose to disregard any instructions provided in the letter.

If you are preparing to make a Will, please contact our Estates team who will be able to assist you in ensuring your Will meets the requirements and is executed in accordance with the law in order to protect your assets. Our Estates team is able to provide you with various tailored asset protection strategies including implementing blood line and protective testamentary trusts to ensure that your intended beneficiaries are protected from bankruptcy and a relationship breakdown in the future.