Frequently Asked questions About Wills

Should I make a Will?

Everyone should make a Will. A Will ensures that your assets are distributed how you wish them to be after you have passed. Furthermore, a Will is the only way you can ensure that those who are dependent on you are adequately provided for in the event of your passing.

Is it possible to leave my children out of my Will?

This is very difficult, and you must think very carefully about leaving your children out of your Will. If you do not make adequate provision for your children in your Will, your children will be able to challenge it. It is also not possible to include a provision stating that anyone challenging the Will is to be disinherited – this cannot be a valid provision.

Does it matter if I have become very ill when I make my Will?

A Will is valid so long as you have mental capacity. However, if it is possible your mental capacity may be called into question, you can get a statutory declaration from a competent doctor to prove that you understood what you were doing when you signed the Will.

In certain States a court can make a Will for you in certain circumstances, if you lack sufficient "mental capacity".

Can I make my own testamentary trust?

In order to make a testamentary trust you will require the assistance of a lawyer.

Can anyone be a witness to my Will?

A witness to your Will should not stand to inherit under your Will or be your spouse.

Furthermore it is best practice that the witness not be married to anyone who stands to inherit under the Will. It is possible to have a Will declared valid even if it does not conform to these technicalities; however, it is far easier to ensure they are complied with in the first place.

What will happen to my debts when I pass away?

Unfortunately for those who survive you, any debts that you have while you are alive remain as debts.

What if I pass away without a Will?

If you pass away and do not leave a valid Will, you leave what is known as an "intestacy". This only means you have not validly disposed of some or all of your assets.

It is a common idea that the Government will take all of your assets if you die intestate, however this will only happen if you die leaving no living next of kin.

If you die without a Will, there is a legal formula that will determine how your assets will be distributed.

This may mean that your assets will end up going to someone other than you intended them to and you cannot exert any control over how they are distributed.

Who will arrange my funeral?

Your funeral can be arranged by anyone, there is no legal rule stipulating who it will be, however the executor has the final say in your funeral arrangements.

The funeral will be paid for by your executor (they have the legal responsibility to do this).

It is best practice to deal with this issue before your passing. This includes discussing any funeral arrangements you wish to be made with your close friend and family. This will ensure they are carried out. Even if instructions are contained in a Will these could be misinterpreted and you may end up not getting what you wanted.

Will I need a lawyer?

It will always be better and may put your mind at ease if you have a lawyer make your Will. Lawyers are covered by indemnity insurance and so if beneficiaries miss out on inheritance because of any error, the beneficiaries can claim against the lawyer's insurer.

Will the guardian I have chosen for my children be appointed after I die?

The courts have the final say in who will look after your children after you die. However, if you follow the guidelines for the appointments and make an appropriate choice for their care then you choice will be very persuasive to the courts.

Can I leave a particular item to someone?

Yes. However this item must be able to be identified by the executor. You should include a detailed description of the item in your Will and even a photo is you feel this may be appropriate – it is also a good idea to explain to your executor where they may find this item.

Planning to Make, Contest, or Update a Will in NSW?

If you are thinking of contesting, making or updating a Will in New South Wales, Szabo & Associates Solicitors can help. To get in touch, please call us on (02) 9281-5088 or click here to book a consultation. Alternatively, please complete our online enquiry form, which is located on the right-hand side of this page. We are always delighted to hear from you!