Why You Need A Will

We all make plans.

Education, career, marriage, travel, children, retirement – in no particular order, of course – but have you thought about what comes next?

At some point, you’ll need a Will.

Why do you need a Will?

A Will is something everyone should have, regardless of age, health, or personal assets. Often, we don’t think about making a Will until we are approaching retirement – but unfortunately, that may be too late. If you die without a Will, your assets will be distributed in accordance with intestacy law, as you will have passed away ‘intestate’ (which is different from passing away in, say, New South Wales, if you live in Victoria. Incidentally, we can provide for those post-mortem travel expenses in your Will if you have one!). You can also be deemed to have died intestate if you created a Will but did not sign it correctly, and/or if the court is not satisfied that your intention was for the document to operate as your Will.

Intestacy law is a statutory formula that decides who gets your assets without taking your personal wishes or unique situation into account – that is, your assets are distributed according to a legal hierarchy of beneficiaries, which means that the benefits may go to people in an order of preference that you would not have chosen. For example:

  • Your spouse or partner may not automatically inherit your estate
  • If your de facto partner doesn’t meet certain criteria, they may not receive anything at all
  • Any stepchildren will not be entitled to a share of your estate
  • Close friends or other people outside of your family will not receive anything
  • A trustee will be appointed to manage your estate for your children, and this trustee will have control over your financial affairs
  • Your minor children could be taken into care before guardians are appointed, and could end up being raised by a person you would not have chosen, who may raise them contrary to your values and wishes

There is also the risk of litigation over your estate, which can both delay and limit the benefits that you intended for your loved ones. Although you cannot prevent a family member from challenging your Will, you can make it difficult for them to succeed by drafting a Will that clearly (and fairly) sets out your wishes.

Why do you need the help of a lawyer?

So, you’ve decided to organise (or reorganise) your Will. What’s the first step?

You’ll have heard of the infamous DIY Will kit. This is certainly an option if you have basic requirements, as the Will kits have limited options in terms of how you can distribute your assets and make your wishes clear and unambiguous.

However, no matter how well it is put together, no kit can cater for the infinite variety of circumstances that many people have experienced in their lives, all of which determine the degree of complexity that their Will requires. If the kit does not meet your needs, it could spell disaster for your family – especially if you have a blended family, young children, troubled beneficiaries, or complicated financial and/or familial arrangements.

There is also the risk that your words will create ambiguity, be misconstrued, or be unable to be effected. If your Will is poorly drafted, the outcome could differ drastically from your intentions. A Will that is incorrectly attested could also result in issues with its validity – and this is far more likely to happen if you use a DIY kit.

Other benefits of engaging a lawyer to draft your Will in accordance with your instructions are that they can discuss different options with you, and correct any misunderstandings you may have. They can also draft your Will to contemplate future life changes, such as marriage or additional children, so that you do not need to update your Will if and when those things happen.

Where there’s a Will, there’s a way…

…to ensure that your assets are distributed in accordance with your wishes, provide for your family when you are no longer able, limit the capacity for your wishes to be challenged, and have peace of mind about your affairs for the rest of your life.

We know it can be daunting – no one wants to have to think about their own mortality – but it’s necessary, it’s worth it, and we’ll be here to help you every step of the way.

By Brit Stevens, Practice Manager, Atticus Lawyers & Advisors.

If you’d like to discuss having your Will drafted, please contact Brit on (03) 8692 7520.