Harmans Lawyers
08 May 2023

To Will or not to Will?

All Articles & News, Seniors Law

Many people put off making a Will – it’s almost as if making a Will acknowledges one’s own mortality!  But if you die without a properly made Will, you are said to have died intestate and your estate will be settled according to the provisions of the Administration Act (“the Act”).  Under the provisions of the Act your estate will be divided in set proportions amongst your surviving spouse, children and/or immediate family.  Almost inevitably the result is that your estate is divided in a manner different to how you would have wished. On the other hand, if you have made a Will, you can relax in the comfort of knowing that your affairs will be administered in accordance with your wishes.

As well as dealing with your property, your Will can also be used to give directions as to your preference for burial or cremation and the type of funeral you desire.  If you have young children, you should always take the opportunity to appoint a guardian to represent their interests in the event of your sudden death.

If you have a child with special needs and it would be inadvisable for him or her to receive a direct cash payment from your estate, it is possible to set up a Testamentary Trust in your Will, to ensure that the child’s needs are met during their lifetime.  Upon their death, the remainder of the capital and interest of the Trust can then be divided among other beneficiaries.

Similarly, people will often choose to leave their surviving spouse a life interest only in their share of a house property or other investments, so that they enjoy the use of the asset (or the income from it) during the remainder of their lifetime, but on their death, the capital is passed to the children of the relationship. This can suit second or subsequent relationships and can have the additional benefit of the surviving spouse having less assets in their name if they are later asset tested for eligibility for a subsidy.

Even if you have a Will don’t forget that it is a document that needs to be reviewed from time to time as your circumstances change.  A good rule of thumb is to review every five years or if something significant happens in the meantime. There are certain events which make it absolutely essential to update your Will.  For example, if you marry or remarry, your Will is automatically revoked, unless it was made in contemplation of that marriage.  Likewise, if your relationship comes to an end or your marriage is dissolved, or if you have wound up your Family Trust your Will should be reviewed. Give our Seniors Law Team a call on 03 379 7835 to arrange an appointment to discuss how a new Will would be of benefit to you.



The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter.