What is Testamentary Freedom?

It was recently reported in the Sydney Morning Herald (available here) that New York millionaire Leslie Ann Mandel left $100,000 to her 32 pet cockatiels in her Will, to ensure they’re well cared for following her passing. It may seem like a strange arrangement, to leave such a vast amount of money to pets, and admittedly this is a unique situation, but it also serves to demonstrate the usefulness of Wills that have been validly created.

A Will is essentially your last written instructions for what is to be done with your property, described in law as your 'estate', when you pass away. Generally speaking, (and subject to complying with the requirements to leave adequate provision to those set out in the Succession Act) you will have complete freedom to decide how and to whom your estate is to be distributed, provided your wishes are set down in a carefully drafted and valid Will. Szabo & Associates, Solicitors is a leading law firm providing advice and guidance on the creation of Wills in NSW. In this blog post, we review the current state of the law and highlight what can and cannot be done with a Will.

Getting the basics right: precisely what is a Will?

A Will is the only legal document that is capable of giving effect to whatever intentions you have for the property you leave behind when you pass away. Many people do not understand why there is ever a need to discuss this with a solicitor, often owing to the fact that they forget to plan for what happens when they pass away. The unfortunate reality is that we all will, at some point, leave behind loved ones and a significant amount of property that will need to be organised: our home, our car, our superannuation blances, our bank accounts, items of sentimental value that we have kept over the years, amongst many other things that we have amassed over the course of our life.

While it may be difficult to think about the idea of dying and what you will want to have done with your property, the decision to make a Will can not only reassure your family, but also yourself. You will have the confidence that whatever you record in your Will will be honoured by your surviving family when you pass away.

Covering all bases: What exactly needs to go into a Will?

You will no doubt have a great deal to think about in terms of your property and what and to whom you wish it to be passed to. It is good practice to take some time to think about what property you currently own and what will ultimately make up your estate when you pass away. After having done so, you should note down exactly what is to be done with whatever you do not actively intend to dispose of or sell but wish to pass onto those who survive you.

Essentially, you must include everything that makes up your estate and ensure your intentions for it are communicated very clearly. This is the beauty of a properly constituted Will: you have 'testamentary freedom' to organise your estate exactly how you want. Furthermore, you should also think about any steps you want to take to leave something for future generations. It is not uncommon for some people to arrange for some component of their property to be placed into a trust, which will then be used to benefit someone later on, e.g. for grandchildren or payment of university fees in later life.

Not only will you have the freedom to decide on how your estate will be distributed, you will also need to decide on who is to have the responsibility for carrying out the instructions set down in your Will. This involves your choosing an 'Executor' and a 'Trustee'. It is not uncommon for one person to be chosen to perform both roles. They are largely similar in nature, in that they will have responsibility for ensuring that the terms of your Will are carried out. Executors tend to have the most responsibility in this respect, as they will need to ensure that all of the legalities are observed before your estate is distributed, pay any debts that are due by your estate, and then distribute your property. Trustees tend to be more actively involved in situations where a Will has provided for the creation of a trust, such as for assets to be placed for the benefit of future generations. It will be their responsibility to ensure that whoever is to benefit from the trust does so and that the monies contained in a trust are used for the specified purpose.

Keep everything in order: are there any rules that I need to be aware of?

Generally speaking, the law is not framed in a way as to be too prescriptive in what you can and cannot do with your Will. However, there are certain rules that your Will must comply with, which relate to the way it is created and the substance of its provisions.

When your Will is created, in order for it to have effect when you pass away it must be legally valid. The requirements for validity are not too onerous, other than requiring that your Will is a written document which you have signed, and that your signature is witnessed by two people who are present at the same time and place as the Will maker and are not bneficairies under the Will. Equally important in terms of the creation of your Will, is that the decision to make one must be entirely your own. If there is any reason to suspect that you have made a Will having been manipulated or pressured into doing so by someone else, then your Will cannot be deemed as legally valid.

In terms of the content of your Will, there are very few restrictions placed on your 'testamentary freedom'. However, the only key restriction that you will need to observe in drafting the terms of your Will is that you make 'adequate provision' for the closest members of your family: your spouse, children and any dependants that you may have. While it is hoped that no one would consciously leave someone out of their Will who is such an important member of their family, there are situations where this does happen. The result of this is that a family member can then challenge the terms of the Will, which can then mean that your wishes cannot be honoured. A legal challenge to your Will on the basis of a 'lack of provision' could result in your estate falling into 'intestacy', meaning that the courts will be forced to distribute your estate according to a legal formula that will have no regard for your wishes or intentions.

Contact Our Expert Wills Solicitors

There is a great deal to think about when creating a Will, and you should be meticulous in planning what you want to be done with your property. However, it is equally vital that you understand what is involved in creating a Will that is legally valid and in understanding whether or not the law will allow your intentions to be honoured. Szabo & Associates, Solicitors is a firm of respected solicitors who have been practicing the law of Wills for many years. Our dynamic and friendly team regularly work with clients to help them draft Wills that are comprehensive and reflect their circumstances. Contact us today to hear more about how we can help you.