Considerations When Preparing a Will

What is the purpose of a Will?

A Will outlines one’s personal directions as to how one’s estate’s assets should be dealt with on their death.

It allows one to have the opportunity to direct how one’s estate is to be administered and distributed.

A Will allows one’s assets to be dealt with smoothly and efficiently.

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What happens without a Will?

Without a Will, one will have no directions as to how one’s estate is administered on their death and their assets are to be distributed in accordance with the laws of intestacy as set out in the Succession Act 1981 (Qld) (“The Act”).

Considerations when making a Will

Are you considering making a Will?

Below are some key matters which you must consider when deciding to make a Will:

Who will be your Executors?
Do you require Guardians?
Do you have any duties?
What can you give under a Will?
Whether you need to pass on control of any trust and company structures;
How do you give to blended family members?
How to ensure your Will is properly prepared and signed?
What happens if you do not have a valid Will?
When should you update your Will?

1. Executors

A Will allows you to appoint executors to be responsible for attending to your wishes and distributing your estate according to your Will, and protecting the interests of your beneficiaries.

2. Guardians

If you have a child or children under the age of 18, it is prudent that you consider appointing guardians to look after your children should you pass away before your children are adults.

It may be in your child or children’s best interests for you to set out who you want to care for them in your Will.

You may wish to consider whether you want to:

Have conditional or continuing Guardians;
Have more than one Guardian acting jointly;
Provide directives to those Guardians;
Provide a gift to the guardian; and
Advance monies for those children.

If a parent of your child survives you, the surviving parent will generally continue to exercise care and authority over that child.

3. Your freedom and duty when making a Will

You have the freedom to make your Will the way you wish to and no one can dictate to you what your Will should contain or demand to know the contents of your Will.

Although, you must consider when you are making your Will that the law imposes a duty on you to consider anyone who may reasonably expect to benefit from your estate.

Whether or not you have a Will, the Succession Act provides that:

Spouses (including de factos and some former spouses);
Children (including step-children); and
Certain dependants

Have the right to apply to the Court for further provision from your estate if they have not received adequate provision for their proper maintenance and support after your death.
This is called a Family Provision Application.

We recommend taking legal advice regarding how to best manage the risk of a Family Provision Application according to your personal circumstances.

You can consider:

Disentitling conduct
Any inter vivos provision
The size or nature of your estate
Strategic property holding

4. What you can give under a Will?

According to the Act, you may give any property which you are entitled to as at your passing.

Consider the distribution of:

Cash;
Real estate;
Shares/units in public companies/listed trusts;
Pets, motor vehicles, jewellery, art;
Assets outside Australia – do you need an international Will?
Shares in private (Pty Ltd) companies;
Property holding arrangements;
Liabilities – do you have a solvent estate?
Adequate descriptions of assets;
Forgiveness of loans or debts (CGT implications);
Avoiding lists of gifts – risk of ademption.

Things that may not immediately form part of your estate on your death include:

Superannuation in a Retail Fund or a Self Managed Super Fund (“SMSF”);
Life Insurance proceeds;
Property used in a business.

Think about:

A review of the Register (folder) of SMSF core documents (trust deed, variations, and recent accounts, including member details);
Binding Death Benefit Nominations;
Life insurance policy;
Buy or sell arrangements;
Business succession arrangements.

5. Passing control of trust and company structures

You cannot list the following in your Will:

Assets held by that person as trustee;
Other trust assets;
Company assets.

Depending on your needs and intentions, trust and company structures can be appropriate vehicles to provide for the ongoing needs of your loved ones after you die.

If you have a controlling interest in a trust or company holding valuable assets, you need to consider how this control might pass upon your death. The time to consider this is when you make a Will.

Think about:

Family Trusts, Unit Trusts, Hybrid Trusts, Fixed Trusts;
A review of the Trust Deed (and any variations), latest end-of-year financials for the Trust and Unit-holders Register for Unit Trusts;
Succession of Trustee;
Succession of Appointor (if any);
- Often the personal representative of the last surviving Appointor;
- Consider nomination by Will (if Trust Deed allows);
Trust property – any unpaid present entitlements?
- Repayable on demand to the beneficiaries of the Trust.  If there are significant UPE, this can greatly reduce the actual Trust assets.

Think about:

A review of the Constitution, Shareholders Agreement, Joint Venture Agreement (if any) and the most recent financial statements for the company;
Special rights attaching to different classes of shares;
Role of Directors;
Role of Shareholders.

6. How do I give to members of my blended family?

If you have had or are undergoing a divorce or separation, it is important to think about:

Any court sanctioned property settlement;
Remaining outstanding property settlement matters;
Any ongoing maintenance orders or arrangements;
Child support.

These things may affect the enforceability of your Will or the risk of a Family Provision Application.

If you have started a new marriage or de facto relationship, think about:

How to provide for your spouse;
How to provide for any children of a previous relationship;
Possible mutual Wills with a Will Contract;
Deed of Family Arrangement with adult children or dependants.

7. Has my Will been properly prepared and signed?

If you have made your own Will or are in the process of making one, we recommend that you seek legal advice to ensure it is valid.

The Succession Act 1981 (Qld) (3) outlines that a Will must be:

In writing;
Signed by the Will maker with the intention of executing the Will;
Signed in the presence of two (2) or more witnesses at the same time, and who must attest and sign the Will in the presence of the Will maker.

8. What happens if I don’t have a valid Will?

If you do not have a valid Will, we recommend you speak with Legalease Lawyers to assist you in preparing a Will while you still have capacity.

If you have made a Will that is non-compliant, your beneficiaries may face long and costly legal proceedings and the Court will ultimately decide whether your Will is invalid in which case your estate may be distributed according to your previous Will (if you have one) or the rules of intestacy.

After you die, it is possible for the Court to dispense with the legal requirements for your Will if it does not comply. However, the Court process will always cause delays and incur costs in the administration of your estate.

9. When should I update my Will?

You should review your Will regularly and consider updating your Will as your circumstances change for example, if: