Speculating about life and personal longevity may seem less than uplifting, particularly when you’re feeling healthy and indomitable. The issue of making a will can be considered as premature, or even ominous, to some. But planning now for future contingencies is the most effective way to ensure the protection of your family’s welfare.

If you don’t make a will, you risk the protection and security of those you leave behind. If you die without a will, you are said to have died ‘intestate’ and your assets are sold and distributed according to a specific formula outlined in the Administration and Probate Act 1958 (Vic). Even if you do make a will, if you fail to make it properly or do not make it legally enforceable, the result can be just as chaotic.

A will is not set in stone, so when circumstances change, the will can be changed too. Regular reviews and updates might be driven by any number of factors, including changes in relationships, a birth or death of a family member or beneficiary, and the acquisition or sale of assets bequeathed in the will. It is recommended to review your will every five years.

In addition, automatic changes to your will can be determined by the happening of certain personal events. Marriage after the making of a will renders that will invalid. And, while a will made prior to a separation will not be affected, a divorce will automatically revoke any gifts to the divorced spouse, as will their appointment as executor in the will.

Because a will is a legal document setting out your intentions regarding the distribution of your assets upon your death, lawyers are often involved in the process. They act to ensure the will is clearly and correctly drawn up, signed and witnessed, and complies with all legal requirements. A lawyer will also be able to advise on the best way to update your will, clarify the role of an administrator or executor, and ensure your interests are represented in any associated claim.

There are three main steps to follow when making your will:

1. Assess your assets, which may include a house, land, car, shares, insurance and superannuation benefits, money and other personal possessions. Understand what you own and how you own it.

2. Determine your beneficiaries and consider likely claims or challenges that could be made. There are issues that arise under certain circumstances, including mixed families, vulnerable beneficiaries, children of divorced parents and children less than 18 years of age.

3. Consider other issues regarding the will including legal compliance, tax effectiveness (with particular regard to trust holdings and estate planning), and likely challenges or claims to particular assets.

In 1997, the Wills Act (Vic) was amended to extend the number of people who could make a legal claim against a deceased estate. Those entitled to claim now include any person who can show that the deceased had a responsibility to provide for them. Prior to this, only a spouse and children (with the exception of step-children) of the deceased could make a claim. Now, legislation takes into account the rights of domestic partners and wider family arrangements, including same sex relationships. While the revised Act has led to an increase in challenges and claims, it has also arguably made the system fairer by taking into account the changing dynamics of modern relationships and families.

Asset distribution upon death does not have to be a complicated process. Careful planning and professional advice will ensure that your will is valid and your intentions clear. Leave a legacy, not a law suit.

More information

From the LIV Bookshop
Rest Assured: A Legal Guide to Wills, Estates and Funerals, Long and Coffey, $29.95;
Hutley’s Australian Wills Precedents, by C. Rowland, $125.

Useful web links
For general public information regarding wills, probate and powers of attorney visit: www.liv.asn.au/public/legalinfo/wills/wills-Wills.html