Importance of making a valid Will


Why is it important to make a valid Will?

If you die without leaving a valid Will, your Estate will be distributed according to a formula set down by the Succession Act 2006. This formula is commonly known as the “rules of intestacy”. These rules can mean that persons that you may wish to exclude from receiving a share of your Estate may become automatically entitled under the legislation, while others that you may wish to provide for (such as relatives, friends or charities) can miss out entirely on receiving a share.

In what circumstances could there be no valid Will?

Failing to put in place a Will is not the only circumstance where there may be no valid Will in respect of your Estate.

There may be flaws in a Will that you have made which may mean that, in the event of your death and when giving orders to distribute your Estate, the Supreme Court could reject your Will as not being valid. Examples of where Wills may not be valid include where a Will that you have made has not been properly drafted, signed and/or witnessed, or where your Will has not been updated to reflect the scope of your assets at the time of your death. These issues are increasingly becoming evident in the case of home-made and online DIY Wills, where individuals have drafted their own Will without seeking legal advice.

Another common situation is where a person marries or divorces after making a Will. Under legislation, a Will is generally revoked if the Will-maker later marries. A divorce will also generally revoke any clauses in the Will that make the ex-spouse a beneficiary, executor, trustee, advisory trustee or guardian, or appointee or appointor under a power of appointment.

What could the rules of intestacy mean in my circumstances?

The rules could mean that ex-spouses that you have not yet formally divorced, estranged children, wasteful individuals, or others whom you may be particularly concerned to exclude may automatically receive a share of your Estate.

The rules also have scope to enable multiple spouses of a person to be entitled to receive a share of an Estate. While multiple marriages are illegal in Australia, this can apply to a situation where a deceased person never formally obtained a divorce from an ex-spouse but also leaves behind a new de facto partner. In some circumstances, both an ex-spouse and a new de facto partner may be entitled to receive an equal share of your Estate. This may cause conflict and distress for your living relatives.

You can avoid the operation of these rules by ensuring that you have put in place a carefully drafted Will and keeping it up-to-date with changes in your circumstances.

Contact our Estate Planning team for advice on ensuring that a valid Will is in place in respect of your Estate.