BY COURTNEY STILES & REBECCA MULLAN

Wills & Inheritance BY COURTNEY STILES & REBECCA MULLAN

What is a Will and It’s Purposes • A will is a legal document giving legal effect to a person’s wishes about the distribution of their possessions after death. • A will is created to allow the deceased to have control over the distribution process of their most treasured belongings. By possessing a will it’s essential to consider what may happen to their possessions, debts or other residuary estates. By doing this it ensures the support that they will give to any person who relies on them for preservation and support.

LAW ACT Wills Act 1997 (Vic) gives the requirements for making a valid will, and the Administration and Probate Act 1958 (Vic) which gives rules for the distribution of property when a person dies intestate.

Statute Law Amendment The Statute law Amendment (relationships) Act 2001 (Vic.) allows a domestic partner to benefit under the administration and Probate Act 1958 (Vic.) and states that a domestic partner can be: The spouse A person who was living with the deceased as a couple in a genuine domestic relationship for two years immediately before the death The Parent of a child of the deceased when the child is under 18 years of age at the time of the death

Did you know…? Over 70% of adults die without a will. Approximately 2500 people die between the ages of 15 to 24 each year in Australia. How many of these people do you think would have made a will before their death? Why do you think the reasons are behind people not making a will…

Reasons Behind Possessing a Will • By creating a will it enables people to : • 1. Choose someone who will oversee the distribution of the estate • 2. Appoint a person to act as a guardian to their infant children • 3. Dispose of their possessions as they see fit • 4. Control how their estate will be distributed after their death

Reasons as to why people don’t posses a Will Reasons for not creating a will may include: 1. Never gave it a thought 2. Didn’t like the idea of making a will 3. Felt solicitors charged too much 4. Believed that death was a long way off (Approx 2500 people die between the ages of 15-24 each year in Australia)

Contents of a Will The contents of a will consist of: • 1. Signatures • Two Witnesses • Lawyers • Client • Distribution of possessions: • Debts and expenses • Estates • Directions to the appointing of: • Guardians and infant children • Executor • Interpretation • Executives powers

Making Wills There is not just one official way in creating a Will. The various way to make a will are: • Go to a solicitor • Go to a voluntary legal service • Consult a trustee company • “Do it yourself” – Making a will kit ($29.95) • Simple form from newsagents The person or client, who is in the process of making a will is called a testator.

In the absence of a will A court will appoint an administrator to oversee the distribution of the estate The state may appoint guardians for infant children or take them into care The property is divided according to strict rules

Distribution of an estate when there is NO Will

Problems involved in making a Will Mistakes can be made You may forget to get it witnessed or appoint an executor You may make specific bequests, but forget to make a clause dealing with the residue of the estate You may leave the will at home where it could be tampered with instead of in a solicitor’s office

Requirements to make a Will valid Over the age of 18 The only exception to the age limit is if the minor is married or obtained a court order to authorize the making of a will The will maker must be able to understand the nature of the will They must posses a mental capacity to make a will The court can change a will in special circumstances if: The person does not have mental capacity The will or changes made to the will would be likely intention of the incapacitated person It is reasonable for the court to make or alter the person’s will

Requirements to make a valid Will A will must be written In writing Cannot be made on audio or video cassette tapes because they could be edited A will must be signed and dated Two witnesses must be present and sign every page Any alterations to the wording of a will after its signing will not be valid unless the willmaker and the witnesses sign in the margin alongside the alteration The will must be witnessed Two witnesses must be present when the willmaker signs the will and should sign the document immediately after the willmaker.

Changing a Will In order to make minor changes to a will it’s referred to as a codicil In order to make major changes to a will it’s referred to as a revoke and is better to remake it It is necessary to change your will when a person marries or when other circumstances change It is sensible to review a will every five years to check it is still current and reflects the testator’s wishes

Conditions involved in a Will In order to inherit, a beneficiary must survive the willmaker by 30 days or more The client can attach personal conditions to a will Eg. How the beneficiaries should receive benefits under the will Must not be against public policy

Revocation of a will A will is revoked or no longer valid if: You make a new will You destroy the will You make an instrument of revocation The willmaker marries or remarries

Contesting a will If a person believes the distribution of the estate under the will is unfair, there may be an opportunity to contest the will with a view to changing the distribution of the estate. The law sets guidelines and settles the disputes The courts need to interpret: The wishes of the willmaker The meaning of the words in the will The legislation that sets down guidelines for the provision of the immediate family

Case study A man made a will, leaving the bulk of his estate to his brother and sister equally. He died about 12 months after he had married. His widow, Muriel, argued that the marriage had revoked his previous will. His brother and sister argued that in his will he had left his personal chattels plus $10 000 “to my fiancé Muriel,” and that this will was therefore made in contemplation of the marriage to Muriel. If the will were made in contemplation if the marriage to Muriel, then it could not have been revoked by marriage. What do you think the outcome might be?

Case Study Outcome The court decided that the words “to my fiancée” could be sufficient to show that the will was made in contemplation of the marriage, but in this case it was more in expectation of the marriage and not in contemplation of the marriage. The marriage therefore revoked the will and the man died intestate, which meant that most of his estate would go to his widow, Muriel, rather than to his brother and sister (as appeared in his will)

Debts and Expenses Debts and Expenses are a variety of different items following a range of diverse contracts of which every individual faces with having a job and money. When the deceased creates a will, their children will inherit these financial proceedings and will have to deal with them on their own accord. Debts are the outstanding financial payments of which an individual owes the bank. Debts are significantly common within the Inheriting financial figures. Expenses are money relating purchases of which the individual has paid for. Money Inheritance often results with the beneficiaries having to pay for the deceased’s funeral and other payments which were left outstanding.

Residuary estates A residuary estate within the law of wills, is any portion of the testator’s or clients property which is specifically promised to an individual listed in the will or any such property that is of a specific devise which fails. This is also known simply as residue. The document or will may identify the taker of this estate through residuary clause or residuary bequests. Intestacy is the situation of which the estate of the individual who is deceased, owning the property greater than the sum of their enforceable debts and funeral expenses and does not have a valid will or other binding declaration.

Inheritance Inheritance is the practice of passing on property, titles, debts, and obligations upon the death of an individual. Important role in human societies. The rules of inheritance differ between societies and have changed over time. The main types of Inheritance include: Money Property Guardianship Assets

Probate • Probate is a certificate granted by the registrar of probates or the supreme court, giving approval to an executor to deal with an estate. • The executor of a will needs to prove that the will was the last one made and that he or she is the person named in it. • The certificate allows the executor to collect the assets and distribute them to beneficiaries at the appropriate time.

Do you need Probate? In most cases it is only required in large estates where the asset holders will not hand over the assets until they have seen the probate certificate. If you wish to transfer or sell you will need probate. Release accounts less than $5000 without probate

Further Information Beazer.M Gray.J, 2008 “Access and justice” 9E 660 Wolf.S.S, “Wills and Inheritance,” Advameg.inc, http://www.deathreference.com/Vi-Z/Wills-and-Inheritance.html, 07/10/09 “Legal Wills Made Easy,” Legal Wills made easy, http://www.legalwills.com.au/03/10/09 “Will (law),”Wikipedia, http://en.wikipedia.org/wiki/Will_(law) 03/10/09 “Inheritance,” Wikipedia, http://en.wikipedia.org/wiki/Inheritance 02/10/09 Commonwealth of Australia “Deceased estate and capital gains tax” Australian Government, http://www.ato.gov.au/individuals/content.asp?doc=/content/37184.htm 29/09/09 “Death and Inheritance,” Legal Information Access Centre, http://www.austlii.edu.au/au/other/liac/hot_topic/hottopic/1999/4/5.html, 28/09/09 Stiles. C, Mullan.R, “Wills and Inheritance,” Wikispace, http://legal-studies--ave.wikispaces.com/Wills+and+Inheritance

BY COURTNEY STILES & REBECCA MULLAN