FAQs – Willfactory

Frequently asked questions

Scroll down for more, and when you're ready use the links in the header menu above to begin making your documents

Will Basics

What is a Will?

A Will is essentially a document that makes a series of legally binding instructions to your Executor/s about how your assets, your children, and your body shall be looked after when you are no longer around. A Will comes into effect following death, and is designed to ensure that your wishes are respected. A Will is a very important part of future planning and we recommend that those who are legally able to make a Will do so.

——

Please note: The information above is a summary only of the discussion in question. It does not take your individual circumstances into account and is not intended to be, nor should it be relied upon as, a substitute for direct, personal, legal or other professional advice. We offer this information without any assumption of a duty of care by Perth Law and without any representation or warranty as to the information’s accuracy or completeness.

Who Can Make A Will?

Generally speaking, any person aged 18 years or over, who has testamentary capacity, can and probably should make a Will.

——

Why Should I Make a Will?

Quite simply, in the absence of your making a Will, the decisions about how your assets are to be distributed, how your children are to be looked after and, in the absence of next of kin, how your body is to be treated, ultimately falls to the State in which you reside. Each Australian State has their own legislation dealing with how a persons assets are to be distributed following their death, with various calculations applying depending on the make-up of your family (and extended family) at the time of death. More importantly, if you do not have a spouse, and your only family members are distant relatives, your Estate may be absorbed by the State. To seek to ensure that your Estate is dealt with in accordance with your wishes, and does not end up on the coffers of the State, it is recommended that you make a Will.

——

What is Testamentary Capacity?

Generally speaking, a person has testamentary capacity if they:

-Understand the nature of the act of making a Will (in other words, understand what the Will is for);

-Understand the extent of their Estate (know what assets they have);

-Understand who has a reasonable claim upon their Estate (in other words, those people to whom the Will maker has a responsibility to provide for financially, such as spouses, children and financial dependents); and

-Not suffer from a “disease of the mind”, such as dementia, mental illness, or substance induced psychosis.

——

What Makes a Will Binding?

Provided that you meet the legal requirements to be able to make a Will as described above, that you follow the instructions on our online form entirely, and provided that you freely and voluntarily sign each page of the Will before two independent adult witnesses who countersign accordingly, you will achieve a legally valid Will. The words, freely and voluntarily, includes that when making and signing your Will you have not done so under coercion, duress or by virtue of having been unduly influenced. To reduce the risk of your Will being set aside by a Court at a later date, it is recommended that you make a Will at an early stage, when you have all of your faculties and can make an independent decision about your Estate.

——

When Should I Review My Will?

It needs to be remembered that your Will is a living document and needs to be reviewed as and when your life changes. The bigger the event the more important it is to review, update or replace your Will. The following are some examples of when it is very important to review your Will:

-If you buy a property;

-If you change the way your assets are held;

-If you take on new debt;

-If assets held in your own name become jointly held, or you acquire assets jointly held;

-If you have children;

-If you get married;

-If you get divorced;

-If taxation laws change; or

-If you haven’t reviewed your Will for some time (ie: every 2 years).

Please note that any later marriage or divorce will invalidate your Will unless your Will was specifically drafted to take into account that particular marriage or divorce. We strongly recommend that you promptly review your Will in the event you get married or divorced.

——

Do I Need More Than One Will?

Generally speaking the answer to this question is ‘no’. For the most part, you can only ever have a single Will at any one time, with any later Will invalidating the previous Will or Wills. Further, a Will drafted in a State or Territory of Australia will have legal effect in every other State or Territory of Australia. The only time you may need more than one Will, or a codicil to your Will (ie: mini Will that varies your Australian Will accordingly), is where you have property in another or other countries. Whilst the law of many countries will recognise your Australian Will as being valid and binding, this is not the case for all countries. If you have property outside of Australia, we recommend getting advice from a lawyer qualified in that country as to whether or not you need to make a Will specifically for those assets.

——

I’m Single with no Children, what about me?

It’s probable that having read through the information on our site, that our Wills don’t seem to bear any relation to your personal circumstances. Don’t stress, we haven’t forgotten you. Let’s face it, things happen in life. We form relationships, and sometimes children follow without being part of the longer term plan. Wills need to be drafted with an eye on the future, even when looking at the present. Right now you may have siblings, parents or friends who you want to be your beneficiaries. However, if that changes unexpectedly, and there is a delay in updating your Will, it is better that your current Will is at least somewhat mindful of what the future may hold. To that end, whilst you may choose for your Estate to go to your siblings, parents or friends, the standard drafting of most Wills includes a provision that the residue will fall to your children in equal shares. In the event you do not have children, then the gift goes to your other nominated beneficiaries. Please note that our online will form does not force you to follow such conventions. Whilst it is the recommended approach, you do have the option of setting your own residual gifts without including any children. Please note that should your circumstances change, such as entering a de-facto relationship, marriage or having children, you should promptly review your Will.

——

The Executor

Question What is an Executor?

An Executor is the person who is legally responsible for gathering, collating or bringing in your Estate, dealing with your body, paying your debts and following the instructions as set out in your Will. Before making your Will it is recommended that you speak to your proposed Executor to ensure that they know you wish them to act, and to get their agreement to do so. It is also recommended that you choose an alternative Executor in the event that your first choice is unwilling or unable to act as Executor at the relevant time. Your Executor should be aged 18 years or over (or at least will be over 18 when the time comes), must have legal capacity, and should be someone you trust. Whilst being an Executor is a serious responsibility, your Executor can instruct accountants or lawyers as the case requires to assist them to meet their obligations. If your Executor is a member of a profession, they will usually be entitled to charge fees to your Estate for the work they do as Executor. In most cases, people will choose their spouse, a trusted friend or a parent to be the Executor for their Estate. Sometimes, people choose more than one person acting jointly to be their Executor. If you cannot identify an appropriate Executor, you may wish to appoint your lawyer or accountant, alternately, the Public Trustee to be your Executor. Please note that your Estate will generally have to pay their professional fees for acting in such capacity.

——

Who Can Be My Executor?

Your Executor can be any person over the age of 18 who has mental capacity. You can choose a spouse, family member or friend. The person you choose can also be a beneficiary of your Estate. Alternately, you can choose a professional executor, such as a lawyer, an accountant or the Public Trustee. Please note that professional executors will likely refuse to act unless they can be paid fees or a commission from out of your Estate.

——

Duties of an Executor?

The duties include:

-If there is no next of kin of the Will maker, organise the Will maker’s funeral;

-Searching for and locating the most recent Will of the Will maker;

-Applying for a grant of probate of the Will;

-Collating the assets of the Will maker and, if necessary, selling them to convert them into money;

-Paying the Will maker’s debts; and

-Managing and distributing the remaining assets of the Will maker in accordance with the Will.

——

What if my Executor Can’t Act for any Reason?

If your chosen Executor or Executors cannot act for any reason, then any person with an interest in your Estate, alternately, the Public Trustee, can apply for what are called ‘letters of administration’, in order to Administer your Estate in accordance with the Law and your Will. Essentially, the Administrator performs the same job as an Executor, however, there can often be a period of delay in the appointment of an Administrator by contrast to an Executor, and it is more likely that the person apointed Administrator will be a person who will be entitled to charge fees from out of your Estate.

——

My Chosen Executor Doesn’t Wish to be my Executor Anymore

If this happens, it is recommended that you review and update your Will to appoint a replacement Executor. If you wish to use our website to change or update your Executor, and if it has been more than 30 days since you made your Will, you will need to start fresh and make a new Will.

——

Is My Executor Entitled to Charge a Fee?

A member of a profession, such as a lawyer, accountant, or the Public Trustee will expect to receive payment of fees from out of your Estate. If they are unable to charge a fee to your Estate, they will likely refuse to act as your Executor. Friends and family will generally not charge a fee, however, they are entitled to be reimbursed from out of the Estate any expenses that they incur in their role as Executor, and they can apply to the Court to receive a commission from out of the Estate for the role.

——

Testamentary Trust

What is a Testamentary Trust?

You’ve probably heard this term before, most likely from your Financial Planner, but what do they mean? Quite simply, any Will that involves leaving a gift for minor children until they reach the age of 18 or some other age as specified in the Will creates a Testamentary Trust. It is in essence a trust created within the confines of a Will that comes into effect upon the death of the Will Maker. However, it doesn’t just end there. More complex Testamentary Trusts can also operate to protect assets, such as an asset being held on Trust by the Trustee (usually the Executor) for the benefit of a named individual for life, with the asset vesting to another beneficiary thereafter. This structure can be used to assist a beneficiary (who may otherwise squander the asset) from squandering a gift, or who is bankrupt or at risk of bankruptcy from having the gift seized by creditors. If you have a blended family, such as you have children from a prior relationship, or your spouse has children from a prior relationship, a more complex Testamentary Trust may be advantageous. Sometimes financial planners recommend a complex Testamentary Trust to prevent the dilution of assets by a surviving spouse. Their theory being to keep the assets out of the surviving spouses name for their life, whilst giving that spouse the benefit of the use of the asset or the income from the asset during their life, so as to protect those assets in the event the spouse re-marries or has another family. Upon the spouse’s death the assets then vest in the Will maker’s children. There can also be tax advantages to children who receive an income from a Testamentary Trust when compared with income received from a traditional family trust. Other than trusts for minor children prior to them reaching maturity or a later stated age, at this stage, we do not offer more complex Testamentary Trusts via our online service. There are simply too many factors to consider, potentially preferable approaches that can be taken, and advice points that must be covered, which cannot be addressed via an online service. Should you wish to include a more complex Testamentary Trust in your Will we recommend seeking face-to-face independent legal advice from a lawyer. Naturally, we at Perth Law would be happy to assist.

——

Signing & Protecting

Signing Your Documents

We provide full instructions on signing your Will and other Estate documents in the email enclosing your Will and/or other Estate documents. If you have any queries at that point, you will be able to log a call back request.

——

Keeping Your Documents?

As part of the information emailed to you along with your Will and/or Estate documents, you will receive instructions in regards to safe storage amongst other matters. We also recommend that you follow the link in the email to upload a copy of your signed Will to our server for future safe keeping. If your original Will is lost, then a printed copy of the signed Will can in certain circumstances be used for probate purposes if needed.

——

When Does My Will Take Effect?

Your Will becomes a testamentary document upon it being correctly signed, and will supercede and revoke any prior Wills or testamentary documents. If you do not revoke or make a new Will after that time, your Will will come into operational effect following your death and following your Executor obtaining a Grant of Probate.

——

Can I Revoke My Will?

Absolutely. You can revoke your Will at any time provided you have testamentary capacity at the material time. A Will can and is usually revoked by making and signing a new Will. Alternately, a separate and attested revocation can be made by writing the following, and signing it in the same manner as a Will is required to be signed.

-I [full name] of [residential address], [occupation] revoke my Will of [date of Will].

Please note that revoking your Will in the absence of preparing a new Will, will result in you having no valid Will in place. Revoking your last Will does not result in a previous Will becoming valid. Your previous Will or Wills would have been revoked by your most recent Will and will have no legal effect. We recommend that if you revoke your most recent Will, you make a fresh Will at the same time or, if for some reason you cannot do so at that time, as soon as possible thereafter. Please contact us should you have any questions.

——

Assets & Liabilities

What Are My Assets?

Put simply, your assets are those items of property, including land, shares, vehicles and chattels that are owned by you or registered as being owned by you.

Assets actually owned by you (that are not subject to a charge, morgage or other interest belonging to another) will form part of your Estate and can be disposed of in your Will. Assets owned by you subject to a mortgage or charge, will also form part of your Estate and can be disposed of in your Will subject to certain clarifications being made in your Will.

Issues can arise in respect of certain Assets such as (amongst others):

-Assets owned jointly with another or other;

-Assets owned by companies or trusts;

-Superannuation;

-Life Insurances;

-Annuity funds;

-Assets the subject of a mortgage, charge or other proprietary interest; and

-Assets the subject of a contract entered into before or after the making of your Will.

As you proceed through our online form, further information will be given about certain assets, liabilities and gifts, for your consideration. However, the other FAQa in this subject category address some of the issues that can arise when making a Will in respect of certain assets.

——

What Are My Liabilities?

Your liabilities include any debts, financial obligations or contractual obligations you may have.

Following your Executor obtaining a grant of probate, your Executor must identify and pay from out of your Estate any liabilities that remain, before addressing any gifts made in your Will.

Where liabilities arise in respect of certain assets of yours, in the absence of specific instructions dealing with how that debt is to be addressed (ie: that the asset is transferred to your chosen beneficiary with the debt, alternately, the debt is to be paid from out of your other assets and then transferred to your beneficiary), your Executor may have to sell the particular asset to pay out the debt.

Certain issues that may arise in this context are addressed in subsequent questions.

——

What is my ‘Residue’

The residue of your Estate means the balance of your assets once all liabilities, specific gifts, fees and expenses have been paid. It is usually the largest part of an Estate and is often the most important when it comes to making gifts from out of your Estate.

Your residue is usually dealt with by sharing it equally amongst certain classes of beneficiaries in tiers of gifts, with each tier of gift moving further away from those of your beneficiaries you would most prefer to inherit. Each tier of gift generally operates as a stand alone gift of your residue, with successive tiers only becoming relevant if your beneficiaries in the preceding tier don’t inherit for any reason.

The first tier is usually a gift of the entirety of your residue to your spouse. If that gift does not succeed for any reason, your residue will fall to the second tier of residue gift.

The second tier is usually the gift of your residue to your children in equal shares. If some or all of your children don’t inherit for any reason, that gift or part of the gift will usually fall to the third tier of residue gift.

The third tier is usually your children’s children in equal shares. If such gift fails, then that gift or part of the gift will usually fall to your fourth tier of beneficiaries.

The fourth tier is generally to extended family members or a charity. It is generally a final catch all in the event your preceding tiers of gift are unsuccessful.

The more tiers of residue gift, the more likely that the balance of your assets will go to those you wish to inherit in decreasing order rather than the State. If you die without a spouse, children, grandchildren, parents or siblings, in the absence of a catch-all tier of residue gift, then the next in line to your assets is often the State.

Our online service allows for up to 4 tiers of residue gift in decreasing levels of importance. Should you wish to include more than 4 tiers of gift, we recommend that you speak to a lawyer to make your Will. Naturally, we at Perth Law would be willing to assist.

——

Jointly Held Property.

You may not realise it, but assets that are jointly held as joint tenants with another person will not become part of your Estate. This is because the ‘right of survivorship’ applies to such assets, and immediately upon the death of a joint owner, that property transfers to the surviving joint tenant or tenants.

If you are married, and you and your spouse have bought a home, the home is most likely registered in both of your names as joint tenants. This means that you cannot leave your share of the house in your Will, as that gift must and will fail.

Rather, upon your death, your surviving spouse will become the sole owner of the home under the ‘right of survivorship’ doctrine. If there is a mortgage registered on the home, generally, that mortgage will become the responsibility of the surviving spouse or joint tenant.

The same principle often applies to:

-Household goods, appliances, furnishings and decorations;

-Joint bank accounts; and

-Jointly held shares (etc).

It is only where jointly held property is held in ‘tenants in common’ that your share in the property will form part of your Estate.

There are certain steps that can be taken to sever a joint tenancy and, should you wish to take such a step, we recommend that you seek direct legal advice to that end. Naturally, we at Perth Law would be happy to assist.

——

Mortgage or Charge

You may have real property (ie: land, apartment etc.) subject to a mortgage or charge, or a chattel subject to a charge (including under the PPS scheme), and which property is owned entirely by you. You have a number of choices when making a gift of the same.

The standard, and most recommended approach is to leave the asset as part of your residue. This gives your Executor the flexibiity to deal with the asset and liability, and increases the prospect that your equity or interest in the asset can be successfully gifted to your chosen beneficiaries. Your Executor can sell the asset and cover the liability, or can transfer the asset and the liability to one or more of the beneficiary if the other beneficiaries agree.

Alternately, you can make a specific gift of your interest in the asset, or of the asset itelf. Care needs to be taken at this point to determine how both the asset and the liability is to addressed. If you gift your interest in the asset, then if for some reason your beneficiary cannot take the asset and liability together, the sale proceeds will still go to them and the gift won’t fail. If you gift the asset itself along with the liability, if ultimately your Executor has to sell the asset to pay the liability, then the asset is no longer in the Estate and the gift to the named beneficiary will fail. If you wish to gift the asset without the liability, then you will need to have a souce of funds in your Estate to pay out the liability, otherwise the gift will fail.

Failing gifts can be problematic, particularly if the person meant to receive the gift is a person who could bring a claim against your Estate under Inheritance Law.

If you wish to gift an asset that is subject to a mortgage or charge, we recommend you seek specific legal advice on point. If you nonetheless continue with our online service, such gifts will be drafted in terms of you gifting your interest in the relevant asset rather than the asset itself to increase the prospects that the gift will succeed.

——

Death and Taxes

As the saying goes, these are the only certainties in life. In Australia, Estate and wealth taxes have been abolished. Accordingly, that is one less thing to worry about in terms of Estate planning. However, income tax and capital gains tax (CGT) are relevant considerations.

Your Executor is obliged to file your final tax return or returns on the basis of the length of time your Estate remains to be administered. They must also ensure all tax liabilities are paid (if any).

In regards to CGT, save for the exception discussed below, this is payable on any CGT event as if you were still alive. Your principle place of residence would likely be CGT free, but your other assets, such as real property, shares etc., may well lead to CGT being payable.

CGT is paid when the CGT event is realised. This occurs when CGT property is sold or otherwise realised or transferred. Property acquired pre 1986, and not subject to CGT as a result, will become post 1986 property following death, and will accrue a CGT liability moving forward.

The exception to the basic CGT rule is that transfers of certain property pursuant to a Will can delay the inevitable. Real property transferred to beneficiaries will not require the immediate payment of CGT, but when that property is subsequently sold or transferred, the beneficiaries will be assessed for CGT back to the date when the property was first acquired by you.

It is important that you note that we do not provide taxation and CGT advice or guidance as part of our Will service. Rather it is recommended that you discuss and obtain advice on such matters from your accountant or financial planner.

——

Superannuation/Life Insurance/Annuities

Your superannuation, your life insurance policy, and/or any annuities are more than likely not direct assets of yours. Superannuation and life insurance policies are generally held in a trust fund (hence the term superannuation fund). This is the same for self managed superannuation. Often annuities are structured in the same way.

What this means is that, whilst you likely have a clearly defined benefit or identifiable benefit within the relevant fund, that benefit is controlled and managed by the Trustee of the particular fund, who can and ultimately will deal with that benefit in accordance with the terms as set out in the Deed governing the fund and the relevant law.

In more legal language, what you most likely have is an equitable interest in certain of the assets of the fund, but the legal ownership of those assets is in the name of the Trustee of that fund.

Put simply, this means that the asset is not yours to dispose of in your Will. Further, it is not available to your creditors in the event you die with more debts than you have assets. Rather, you generally deal with these interests by making nominations (and preferably binding nominations with the relevant fund, which must be updated every 3 years in order to remain binding) as to how you wish your superannuation or life insurance etc. to be dealt with in the event of your death.

You can nominate your spouse, children or even your personal legal representative (ie: your Estate) in the amounts or percentages you choose, directly with the relevant fund. The important point is that it is not an asset of your Estate (unless or until you have nominated your personal legal representative, and the fund makes payment to your Estate accordingly), and you can’t generally deal with it in your Will.

We consequently recommend that you contact your superannuation and/or life insurance company in order to make your nominations accordingly. Please remember that by nominating your personal legal representative, whilst you can then deal with the asset in your Will, those monies will be available to creditors of your Estate in the event your Estate cannot otherwise cover those liabilities.

——

Gifts Generally

As time passes, what you own is likely to change. Take that new car that you own today. It may not be the car you own down the track, or the age and value of that car may be very different to what it is today. A gift of $10,000 to a person today, when your asset pool may be limited, may have lost significant value, and may be miniscule, by reference to your future asset position. Making specific gifts of particular items is recommended to be done with due care to the changes to both yours and your beneficiary’s future positions. Whilst you can make almost any specific gifts you want to make, the type of specific gifts we recommend are as follows:

-The gift of a family heirloom;

-Special items of jewellery;

-War medals;

-Sports memorabillia;

-Particular Artwork; or

-Items with a special or instrinsic value.

When dealing with other assets it is often preferable for those assets to be incorporated into the residue of your Estate. By taking such steps, you can apportion out your residue to those of your beneficiaries that survive you in equal or percentage shares, which increases both the likelihood that the gift will have real value at the relevant time, and that the gift will succeed rather than fail. When making specific gifts, unless that specific item of property is owned by you when you pass on, free of encumbrances etc., there is a risk that the gift will fail, and your beneficiary won’t receive the gift. If you do choose to make specific gifts in your Will, but down the track sell, otherwise dispose of, or something adverse happens to, that particular item, you will likely need to make a fresh Will.

——

Enduring Power of Attorney

EPAs

An Enduring Power of Attorney (EPA) is a powerful tool that gives you the ability to authorise another person or persons to act on your behalf in respect of an almost unlimited array of matters. A person granted an EPA can do anything on your behalf that an attorney can lawfully do. From transacting in real property and shares, to opening and closing bank accounts, the list is almost endless. It’s the closest thing to having a duplicate of ourselves.

An EPA does not displace your own authority. It operates in tandem with your own authority and is particularly useful when you may not be available from time to time to act in your own stead.

What is special about an EPA is that if you lose capacity, your EPA can continue through any periods of incapacity. Nobody knows what the future holds for any of us, and a well considered EPA provides us with some certainty that a person we know and trust will be making those decisions for us if for some reason we can no longer make them.

There are also a number of options with an EPA available with our online service:

-You can elect to have it start immediately and continue into any periods of subsequent incapacity;

-You can elect to have it start only upon a declaration of incapacity (which declaration must be made by the Guardianship and Administration Board);

-You can choose an individual attorney, or to have two attorneys who must act together; or

-You can have an alternate attorney in the event your first choice is unwilling or unable to exercise the authority.

In giving an attorney so much power there is always some risk that the power will be used to your detriment. To this end the following is important:

-An attorney must by law only exercise the power in your interests;

-An attorney is not permitted to exercise the attorney for their own benefit (such as transferring your property into their name);

-Having joint attorneys can lessen such risk; and

-Putting conditions on the power of the attorney can lessen some of the risk (although this feature is not available with our online service).

A breach of these rules by an attorney can lead to prosecution, and/or redress through the civil courts.

An EPA is advisable for the majority of our clients. Of real importance is making sure that the person or persons to whom you wish to give your authority is a trustworthy person. Should you choose not to make an EPA, you need to be mindful of the following:

-An EPA can only be made when you have capacity;

-Should you lose capacity, it will fall to the Guardianship and Administration Board to decide who will become responsible for making decisions on your behalf;

-It is usually the person that makes application to the Guardianship and Administration Board that will be granted the authority, alternately, the Public Trustee; and

-The only means of ensuring that the person or persons you would want to have the authority to make decisions on your behalf is by way of EPA made during the period you have capacity.

——

Our Service

Self Assessment

If you want to know whether or not our online service may be suitable for you, please use our online self assessment. The self assessment will go through a series of questions, the answers for which will indicate whether or not our online service may meet your needs. Information will be given to you as you proceed through the self assessment, so you may not have to proceed through the entire form if our online service is not suitable for you. It will also identify if there is risk in using our online form, so that you can make your own assessment as to whether or not to continue. If our self assessment determines that our online service is likely not suitable for you, we recommend that you organise an appointment with a lawyer in order to make your Will. Naturally, we at Perth Law would be very happy to assist you.

——

Online Service

As you proceed through our online form, you will be asked certain questions, which depending on your answers will determine the type of Will that may be suitable for you. Certain risks will be identified, and if our online service is not suitable, you will be informed accordingly. You will also be able to include an EPA and/or EPG. If you are only interested in making an EPA and/or EPG, you will not have to proceed through the full online form. If you have any questions whilst you are proceeding through our online form, please review our FAQs and, if your question remains unanswered, request a call back via our Request Call form. Once all of your selections have been made, you will then be taken to our payment page. Payments are operated by a secure third party, and we do not have access to nor retain any of your credit card or payment information. Once you have paid for your selections, your Will and Estate documents will be emailed to you, along with instructions on signing and storing your documents. There will be links in the email for you to provide us with feedback, and to upload a copy of your signed documents. By using our forms, the information you provide and documents created will be retained by us for future reference or assistance. Whilst you will also be added to our mailing list, you can unsubscribe at any time using the “unsubscribe” link in the email.

——

Example Documents

Example documents are available to be viewed ‘here’ or from the link on the website footer.

——

Beneficiaries

What is a Beneficiary?

Beneficiaries in this context refers to any person to whom you have given a benefit or gift within your Will.

——

Who Can be a Beneficiary?

For the most part any person, entity or charity can be a beneficiary provided that giving the person a gift is not contrary to Law or Public Policy. Some examples include:

-You can leave a gift to your spouse, to your family members, to your children, or on trust with your Executor for the benefit of your minor children and to pass to them when they reach a certain age;

-You can leave a gift to a cat or dog charity, or a person to use to look after your cat or dog, but not directly to your cat or dog;

-You can give a gift to a charitable organisation or political party, but you cannot give it to a terrorist organisation or criminal enterprise; or

-You can give a gift to a person who is in a position of trust to you (such as your doctor or lawyer), but the gift must not arise by virtue of undue influence, must be reasonable within: the context of the relationship; by reference to the size of the Estate; and by reference to those persons who would reasonably expect to benefit from your Estate.

—–

What Sort of Gifts Can I Make?

There are generally two types of gifts you can make, being:

-A gift of a specific item or property, jewellery or cash to a named person or entity;

-A gift of the balance or ‘residue’ of your Estate.

Within these parameters, you can make all sorts of gifts:

-A series of specific gifts to named persons, then a gift of the balance of your Estate to others, either in whole or in part (ie: in percentages or to be divided equally);

-You can make gifts conditional upon events, such as if the beneficiary survives you by a length of time, or when they reach a certain age;

-You can give the gift to someone to use for their lifetime, with the gift to pass onto another afterwards (such as gifting someone the right to reside in your house for life, with ownership going to your children etc); or

-You can make a gift to a trust (either testamentry or separate from your Estate) to be administered by the trustee of that trust in accordance with the terms of the trust (such as a family trust).

The list is essentially endless. Please note that our online service is not suitable for gifts of life interests, conditional or contingent gifts (other than gifts that are to vest upon a person reaching a certain age), or to a family discretionary trust (either testamentary or separate from your Estate) not already in existence. If you would wish to make such gifts, then we recommend you proceed by way of face-to-face meeting with a lawyer. Naturally, we at Perth Law would be happy to assist.

We recommend you consider the questions in our Assets/Liabilities category for further information about the nature and type of gifts you can make.

——

Conditional Gifts.

In order to be enforced, conditional gifts need to be clearly stated, and they must not contravene public policy. For example conditional gifts such as:

-Giving a gift to a child upon the condition of them reaching a certain age will generally be upheld;

-Giving a gift to a spouse on the condition they not remarry will generally not be upheld; or

-Giving a gift to a person for use in only a specified manner may or may not be upheld depending on the gift and the condition attached.

Save for conditional gifts relating to age, conditional gifts can be problematic and we recommend that you pursue more traditional Estate services from a lawyer directly rather than use our online service. Naturally, we at Perth Law would be happy to assist.

——

Can I Exclude a Beneficiary?

Generally speaking, yes you can. The assets are yours after all. However, there is a class of people for whom you have a responsibility to provide for under Inheritance Laws. If you neglect to provide for such a person or persons, or provide insufficiently for them, they could bring a claim against your Estate for further provision. Who are these people you my ask? Whilst it varies in each State or Territory, the following are generally included:

-Any spouse or de-facto spouse (which depending on the circumstances can include former spouses);

-Any children of yours;

-Any step-children of yours;

-Any adopted children or children for whom you have a legal obligation (such as children for whom you are their guardian);

-Any grandchildren of yours (where they are financial dependents of yours); or

-Any parent or extended family member for whom you have provided financially for or who have a financial need.

Whilst the Court recognises that family relationships breakdown from time to time, at the same time they will generally not permit a person, to whom you have or once had a financial or moral obligation, who is in financial need, to rely upon the State when there is a pot of money in your Estate that can be accessed. Making sure you provide for such individuals in your Will increases the prospect that your Will is protected from challenge under Inheritance Laws. Put simply, you shouldn’t exclude the following people from your Will without first obtaining direct face-to-face legal advice from a lawyer:

-Any child of yours, including any adopted child (even if your child is estranged from you);

-Any step-child of yours or child for whom you are a guardian, and for whom you have provided financially;

-Your spouse, which includes a de-facto spouse (including a same-sex spouse);

-If you have been divorced, or separated from your de-facto spouse, (including a same-sex spouse) for less than 2 years and there are no final financial orders made by the Family Court, your former spouse;

-If you’ve been divorced, or separated from your de-facto spouse (including a same-sex spouse) for more than 2 years but Family Court financial proceedings have not yet been concluded, your former spouse; and

-A family member has been living with you, or you have been supporting them financially, that family member.

By leaving such individuals out of your Estate, your Will is not invalidated. However, you are exposing your Estate to the risk of claim under Inheritance Laws. Perhaps the greatest risk from any such claim is the legal costs that may be incurred by the Estate in defending such a claim. The usual costs order at the conclusion of such proceedings is that the Estate pay everybody’s legal costs irrespective of result. This can leave a substantial dent in the assets of the Estate.

If you do intend to leave out of your Will any person for whom you may have a moral or financial obligation, we recommend that you obtain face-to-face independent legal advice from a lawyer of your choosing before doing so. Naturally, we at Perth Law would be happy to assist.

——

Guardians

What is a Guardian?

A guardian is a person appointed in your Will to exercise parental responsibility for your minor children if you die before your children reach the age of majority.

——

What are the Duties of a Guardian?

A Guardian stands in the shoes of a parent, and is responsible for the care, control, welfare and maintenance of your minor children.

——

Why Appoint a Guardian?

There is no obligation for you to appoint a guardian for your minor children. However, should you die, and there is no parent of the children alive to look after them, the choice of who is to look after the children will fall to the Court. This may result in litigation between family members as the Court seeks to determine what would be in the best interests of the children. The Court may choose to appoint a guardian that you would not personally choose. To seek to avoid these issues, it is recommended that you appoint a guardian accordingly.

——

Question My Children’s Other Parent is Alive?

In Western Australia, appointing a guardian of your minor children does not have effect if the children’s other parent remains alive at the time you pass on. Appointing a guardian is about covering your bases in the event there is no surviving parent at that point in time.

——

What if Both Parents Die and Each Has Appointed a Guardian?

The simple answer to this question is to discuss the matter with the other parent and to seek to identify a mutually acceptable guardian so there is no confusion. Otherwise, the outcome could be that each nominated guardian shares the responsibility jointly, alternately, the last surviving parent’s choice prevails, depending on the facts of whether or not the parents died simultaneously or not. If the matter is unclear, then the Court will be obliged to decide.

——

Can I Appoint More Than One Guardian?

Yes you can. You can appoint joint or alternative guardians should you wish to do so. When it comes to joint guardians we recommend that care be taken. Often there is a temptation to appoint a married or de-facto couple as joint guardians. However, this can lead to problems if the chosen couple later separates or gets divorced. We recommend consideration be given to nominating one party of the couple to guard against such complications in the future.

——

Who Can be a Guardian?

Any person aged 18 years or over, who has legal capacity, can be appointed guardian. This can be a friend, grandparent, relative or even a child of the Will maker who has attained their majority. It is recommended that you discuss your proposed choice with the person or persons you intend to nominate to make sure that they will accept the responsibility, because if they do not, then it will ultimately fall to the Court to decide.

——

Can The Guardian Refuse?

Yes they can, and they can also change their mind or minds in the future. For this reason it is important to ensure your proposed guardian is willing to take on the role should the worst happen, and to double check from time to time, especially in the event their personal circumstances change. If for any reason they are no longer suitable to be appointed as guardian or have changed their mind, we recommend that you make a fresh Will.

——

Do I Have to Pay a Guardian?

No you do not. However, it is recommended, and is part of our standard precedents, that your Executor is allowed to make provision to the guardian of your children to cover certain living, accommodation and other expenses. Even with all its rewards, raising children is not a cheap exercise and a potential guardian may be reluctant to take on such a burden where your Will does not provide any means of assistance.

——

Can I Direct a Guardian About How To Raise My Children?

Simply put, your can’t bind your chosen guardian. That is why your choice of person to be your minor children’s guardian is so important. What you can do is leave a non-binding list of instructions for your guardian to inform them of your preferences, including such things as: religious preferences; schooling preferences; accommodation preferences; or other lifestyle preferences. With our service, you can choose to include such instructions in the Executor’s Memorandum, which is free with our Standard Will service.

——

Amending & Revoking

Can I Revoke My Will?

-I [full name] of [residential address], [occupation] revoke my Will of [date of Will].

Alternately, you can destroy your Will with the intention of revoking it. Please note that revoking your Will in the absence of preparing a new Will, you will have no valid Will in place. Revoking your last Will does not result in a previous Will becoming valid. Your previous Will or Wills would have been revoked by your most recent Will and will have no legal effect. We recommend that if you revoke your most recent Will, you make a fresh Will at the same time or, if for some reason you cannot do so at that time, as soon as possible thereafter. Please contact us should you have any questions.

——

Can I Amend My Will?

Yes you can, but we recommend you exercise caution to this end. Once you have signed your Will formally, we strongly recommend that any amendments to the Will be achieved by preparing a fresh Will. Amending an existing Will directly on the Will carries with it significant potential to cause major problems down the track. It should not be done without direct legal assistance. If you wish to make any amendments to your draft Will prior to signing it, whilst this can be done by you and your witnesses countersigning next to hand-written amendments, we recommend that you either make a fresh Will, alternately, contact us to make the amendments required and to send you a clean copy for re-signing. Whilst we may impose a small fee if more than 30 days have passed since you used our service, this is safer than having problems down the track.

——

What Should I Do With My Old Will?

Your old Will will be revoked by your new Will when your new Will is formally signed. Keeping your old Will has the potential to cause problems down the track, in that for any number of reasons, your Executor may not identify that a new Will has been made and may seek a grant of probate on your old Will. We recommend that you take care to ensure this doesn’t happen by striking out your old Will and writing on it in large writing, “Revoked by my Will dated [date of new Will]”, along with details of where you have stored your new Will, and that your new Will was make using the willfactory.com.au service.

——

Other Matters

It’s My Body!

When we die, it is often the case that our families attend to the funeral arrangements well before anybody thinks to look at our Wills etc.. Family members may be surprised that you are willing to donate organs to those in need, or to even donate your body to science. They may also be surprised to discover that you wanted a burial rather than cremation or vice-a-versa.

Whilst legally the obligation to deal with your body and your funeral arrangements falls to your Executor, by the time your Executor obtains a grant of probate, the point may well be mute.

To ensure that your wishes about your body are met, including:

-Whether or not you wish there to be an autopsy (objections can be made by your next of kin within 24 hours of notification of a death);

-Whether you wish cremation, burial or some other choice;

-Whether or not you wish your organs to be made available for donation or transplant; or

-Whether you wish your body to be made available for science,

not only should it be included in your Will, but you really need to tell your next of kin well in advance. For organ donation, you should register your preference with the Australian Organ Donor Register via the Medicare website or offices. Should you wish to donate your body to science, that should be done during your life. You can contact the medical school at UWA or other universities for more information. They’ll pay you for your body (although we don’t believe a monetary value can be put on you), and they will collect when the time comes.

——

What’s a Mutual Will?

The term refers to a Will that contains a mutual obligation, or mutual promise as part of its terms that are binding on a Will maker down the track.

Let’s say you have an errant family member that you want to look after. However, before that happens, you want to make sure your spouse gets everything. By both you and your spouse creating a mutual obligation to leave something to that errant family member when the last surviving of you die, you can make sure that errant family member eventually gets the promised gift.

The mutual component is a promise being made between you and your spouse that if one of you dies, the other will honour the promise in their Will down the track.

Mutual wills have application when dealing with blended families. An example is where your current spouse is to get everything from your Estate, with a mutual obligation to make sure he/she leaves an agreed gift to your children from a previous relationship in his/her Will.

A mutual obligation is different to mirror or copy wills in that there are restrictions on future amendments to the Wills the subject of the obligation as follows:

-If both parties who have made mutual Wills are still alive, one of the parties cannot change their Will to remove the mutual obligation without giving notice to the other party (in other words, they need to tell you that the deal is off);

-If one of the parties to the mutual obligation has died, the other party cannot change the mutual obligation (if they make a new Will, they must include the mutual obligation in the new Will).

-The Court will uphold a prior mutual obligation if it is lawful and not contrary to public policy once the obligation becomes perfected (ie: one of the parties has died and the other party did not give notice during that party’s lifetime that the deal was off).

We do not offer mutual Wills as part of our online service. If you are interested in obtaining mutual Wills, we recommend you make your Will face-to-face with a lawyer. Naturally, we at Perth Law would be happy to assist.

——

My Circumstances Have Changed!

Marriage:

If you get married, and your Will was not made in contemplation of that marriage, your Will will be invalid and we recommend that you make a new Will as soon as possible.

Divorce:

If you get divorced, and your Will was not made in contemplation of that divorce, your Will will most likely be invalid and we recommend that you make a new Will as soon as possible.

Witness Dies:

If a witness to the signing of your Will has died, this does not invalidate your Will. The witness becomes important when ‘proving’ your Will when your Executor seeks a grant of probate. If the Court raises queries about your Will, or someone raises a claim against your Will, then the absence of the witness may prove unhelpful. We accordingly recommend reviewing your Will where a witness to the signing of your Will has died.

De Facto:

Entering into a de facto relationship can change your legal obligations in regards to whom you may owe a moral or financial responsibility in the event that you die. It is recommended that you review your Will in such circumstances.

Separation:

If you separate from a spouse (including a de facto spouse) it is likely that there my be rights accrued in respect of property you and/or your former spouse own either jointly or individually. In such circumstances, until such time as the financial matters between you have been resolved finally by Court Order (whether by consent or otherwise), or the time limit has passed for the bringing of a claim in respect of the relationship, your former spouse will have a claim upon your Estate in the event that the worst happens. Once again, we recommend that you review your Will both following separation, and once final orders have been made, or the time period for the bringing of claims has passed.

Children:

If you have children, adopt any children, become a step-parent, become a foster parent, or become the legal guardian of children, it is a good time for you to review your Will. The definition of children generally does not include:

-Foster children;

-Step-children;

-Grandchildren; or

-Children for whom you are legal guardian,

and it is recommended that your Will be drafted to specifically address such children to ensure that your legal obligations in terms of adequately providing for such children is met.

Asset Changes:

If there are any substantive asset changes, or you acquire jointly held property, or if you dispose of an item of property specifically dealt with in your Will, it is recommended that you review your Will.

Dependent Family Members:

If you become responsible for financially looking after a member of your family, including grandchildren, it is recommended that you review your Will.

Regular Review:

If you haven’t reviewed your Will in the past couple of years, it is recommended that you review your Will.

——

Overseas Property

If you have assets overseas, we recommend making a Will in Australia to cover your Australian assets, along with a Will dealing specifically with the assets you have in the other country or countries. When using our online form, you will have the option of narrowing the scope of your Will solely to assets held in Australia, or to assets held in Australia and elsewhere except for a specifically named country or countries. In terms of the other country or countries, we recommend seeking advice from a lawyer qualified in the relevant country.

——

Confused?

If you are confused about whether or not you should use our online service after reading through our FAQs, here are your options:

-Use our online self-assessment which will help to identify whether our online service may be suitable for you;

-If it appears that it may be suitable, feel free to give it a try and see how you go, taking note of any warnings, other information or instructions that are given during the completion of the form;

-If you remain confused, contact Perth Law to arrange an appointment for a face-to-face meeting where they can prepare your Will in the more traditional way.

-In the end, if you are looking at this website for any reason, it is likely that you should obtain a Will without delay. This is irrespective of whether you use our website, use Perth Law directly, or instruct another lawyer or law firm to prepare your Will. Wills and Estate planning is an important matter that should be addressed without delay.

——

Enduring Power of Guardianship

EPGs

An Enduring Power of Guardianship (EPG) is similar to an Enduring Power of Attorney (EPA) in that it grants to a named person or persons power to make health, lifestyle or treatment decisions on your behalf. Unlike an EPA, which is mostly about financial decisions, an EPG is focused on matters such as where you live, what education you receive, with whom you associate, what health treatments you should receive, or who provides that treatment.

The key difference between an EPA and an EPG is that an EPG only comes into effect when you are incapable of making certain decisions on your behalf. This may be due to an unexpected loss of consciousness, or due to the gradual loss of capacity over time. Where you have capacity to make certain decisions but not others, the EPG will extend to cover those decisions for which you do not have capacity.

In order to make an EPG, you must be 18 years of age or older, and you must have capacity. You may also give your enduring Guardian some or all of the following powers:

-Decide where you live, whether permanently or temporarily;

-Decide who you will live with;

-Decide whether you work and if so, any matters related to that work;

-Provide or refuse consent, on your behalf, to any medical, surgical or dental treatment or other Health care (including palliative care and life-sustaining measures such as assisted ventilation and cardiopulmonary resuscitation);

-Decide what education and training you receive;

-Determine who you will associate with;

-Commence, defend, conduct or settle any legal proceedings on your behalf, except proceedings that relate to your property or estate;

-Advocate for and make decisions about the support services you will have access to; and/or
Seek and receive information on your behalf.

Should you choose not to make an EPG, and should you lose capacity, it will fall to the Guardianship and Administration Board to determine who shall be given the authority to make these important decisions for you. If you want to control who may get to make these decisions for you in the future, you will need to make an EPG.

If you have an Advance Health Directive (AHD, your EPG will operate to the extent that it is not inconsistent with your AHD.

We recommend making an EPG as part of the making of your Will and/or EPA.

——

Ready to start?

Questions? 'Contact' us

Take self 'Assessment'

Otherwise 'Start' now