A will is a legal document that decides how everything you own or control will be distributed at the time of your death. It covers your bank accounts, real estate property, personal possessions, household items, business endeavours consisting of shares and interest in a partnership, digital assets, and life insurance.
To manoeuvre all these aspects effectively, a wills lawyer Perth should be consulted to nominate beneficiaries and ensure a fair distribution of assets.
The process of creating a will in Perth is based on the Wills Act 1970, which states that the testator must be above 18 years of age and have the mental capacity to understand the nature and effect of a will. The document should be in writing and signed by the person in whose name the will is being made.
Two adult witnesses are required to be physically present during the signing of the will by the testator. Both witnesses must also sign the document simultaneously after the testator has completed their signature.
An executor is an individual who is appointed to bear the responsibility of administering your assets and distributing them to your beneficiaries after your demise. It is important to note that an executor can also serve as a witness and be a beneficiary with a claim to your property.
Hence, independent witnesses who have no claim on your assets are preferred to avoid the creation of suspicion and conflicts.
Each page of the will should be dated, and an initial signature of the testator should be provided to show that no pages were added or replaced later. After drafting the legal document is complete, it is stored with respect to the wishes of the testator, which may be at home, with the executor, lawyer, Supreme Court of WA, or Public Trustee WA.
Circumstances evolve, and a testator may want to add relevant changes to the will. To do so, updating your will is an effective option, which can be done in two ways:
A codicil is a small document that adds, removes, or alters part of your existing will. It is considered an official amendment and is drafted when you want to make minor changes regarding your executor, beneficiary, or distribution of certain assets. The codicil must be precise and written with the same legal formalities adopted during the drafting session of the main will.
In case of major altercations, drafting a new will stating the revocation of the old one is more effective than a codicil. The act of marriage and the testator intentionally destroying the will automatically make it invalid. In such cases, writing a new will to avoid intestacy becomes mandatory.
Despite drafting a legal document to distribute your assets in accordance with your wishes after your death, differences may still arise, which may result in the executor or the Supreme Court of Australia facing a will dispute. The following grounds of the disputes are discussed below:
If the decedent lacked the mental capacity or was under undue influence to draft the legal document against their free will, a validity dispute is created. Evidence of forgery or not following the proper legal procedure in the creation of a will also raises questions regarding its validity. If a newer will is found that revokes the old one, the probate of the executor is contested, and a caveat is lodged to prevent him from dealing with the estate property of the will.
It is governed by the Family Provision Act 1972, which states that a family member can file a dispute claim within 6 months of the grant of the probate or letters of administration. In such an instance, the legal implications of the will are valid; however, the family member feels they are not adequately provided for.
The eligible applicants include the spouse or de facto partner, any child of the deceased, whether biological, illegitimate, or adopted, grandchildren only if their parents have died, stepchildren if they were supported by the deceased, and parents if they were financially dependent on the testator at the time of death.
Sometimes, some words or clauses in the will may be unclear, leading to disagreements between the executor and beneficiaries. To ensure fair distribution of assets, an executor may shift the liability to the Supreme Court of Australia. The Court hears extrinsic evidence, interprets the meaning of context words, and issues an order clarifying how the clause is to be understood. The decision of the Court is absolute and binding, and an executor must adhere to it accordingly.
If an executor engages in any act of omission that breaches their legal duties in administering the testator’s estate, the beneficiaries can complain to the Supreme Court of Australia. If it is proven that the executor has not acted in good faith, it can result in the removal of their authority to handle a will.
While the presence of an executor in witnessing a will is not compulsory, they can play a versatile role, from being a beneficiary to signing as a witness. To draft a will with clarity and clear clauses to avoid future disputes and pitfalls, consulting a will lawyer firm is the best course of action.
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