Barefoot Law - Wills Workshop Materials - Making a Simple Will and a Sample ‘Vanilla’ Will.
How To Make A Simple Will - A Very Basic Guide
A will is a statement about what you want to happen to your property - your stuff - after you go.
This is a very basic guide on how a will works and the different people and processes involved.
Your executor is the person who administers your property, your stuff, your estate. They must act in the interests of beneficiaries.
Your beneficiaries are the people you give your stuff to - your partner, your kids, your friends, your chosen charity.
Your will is only valid if you sign every page and it is witnessed by two adults who are not beneficiaries and are ‘competent’.
You do not need a lawyer to sign or witness your will. Or a JP. Just two adults who are not beneficiaries is fine.
When you get married then your previous wills stop having legal effect and you will need to make a new one.
Your executor has the power by law to pay your debts (all of them) and your funeral expenses.
If you own a house as a joint tenant - the usual ‘marriage’ deal - your partner will automatically get your share in the house.
If you have specific gifts things you want to give people you must spell it out in your will. Like a car. Or a ring. This is common.
You can leave everything - all your stuff - to one person or to your kids or grandkids to share. This what people ‘normally’ do.
You don’t have to leave anything to your spouse or kids. But if you exclude someone they can make a family provision claim. It’s complex! See more details on this at the bottom of the page.
You can make it clear in your will that if your kids die before you do then their kids - your grandkids - get their parent’s share. That’s wise.
Always check if your superannuation has a nominated beneficiary - this works ‘outside’ the will - and if you have life insurance, check your beneficiaries.
You can express wishes about how your funeral including whether you want to be buried or cremated but it is not strictly enforceable.
Make copies of your will and give a copy to your executor, and perhaps to your beneficiaries.
You do not have to set out parenting arrangements wishes in your will - and if you do, remember that ‘family law’ still applies.
Warning: if you have complicated property arrangements with trusts and complex tax issues you need specialist, expert advice. That’s not a simple will!
Questions for our Workshop - Answer these Before you write your will
1. Who is going to be your executor?
2. If they can’t do the job, who will replace them?
3. Do you have any specific things you want to give someone? Like a house or a painting.
4. Do you have a partner you want to leave things to? What do you want to leave to them?
5. Do you have any children you want to leave things to? Will you leave the lot? Or shares? Equal shares or do you have favourites?
6. Do you have any friends you want to leave things to? What do you want to leave to them?
7. Do you have any charities you want to leave things to? What do you want to give them?
8. Are your children so young you might need to set up a trust to look after them?
9. When should your children - or other kids in your will - get your stuff - 18, 21 or older?
10. Is there anything else on your mind about your will?
Obvious Things to Remember!
· This list cannot include everything you might need to know or could think of, ok? Not possible!
· This is only a very basic guide - you should talk it through with family or friends before you finalise a will.
· Ideally you should discuss it with a lawyer but if you have a simple will you can do it yourself.
More information
Making A Will: https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/speaking-for-myself/making-a-will
Family Provision Claims: https://www.lawaccess.nsw.gov.au/Pages/representing/after_someone_dies/family_provision_claims.aspx
Dying Without a Will: https://legalanswers.sl.nsw.gov.au/rest-assured-legal-guide-wills-estates-planning-ahead-and-funerals/if-there-no.
Mark Swivel, Barefoot Law, 27 March 2020
The Last Will and Testament of Vanilla Sporty Spouse - Sample Only
This will dated [X] March 2020 is made by me, Vanilla Sporty Spouse, of 99 Straight Lane, Normalville, New South Wales.
1. I revoke all former wills and testamentary dispositions.
2. I appoint as the executor of my will my husband Jack Horatio Sparrow of 99 Straight Lane, Normalville, New South Wales and if he is unwilling or unable then I appoint my sister Kimberly Ranges of 127 Really Long Rd, Broome, Western Australia.
3. I instruct my executor to pay all my funeral expenses and debts at the time of my death.
3a. I give $50,000 each to the Country Women’s Association and Asylum Seekers Resource Centre.
4. I give the rest and residue of my estate to Jack Horatio Sparrow.
5. If Jack Horatio Sparrow dies before me or within 30 days or me, I give the rest and residue of my estate to those my children, Sparrow Sporty Spouse and Jill Sporty Spouse who survive me and if more than one survive me then equally.
6. My executor as the trustee of my estate may, in their discretion, without the consent of any beneficiary under this will, deal with any part of the real or personal property of my estate in order to satisfy a legacy or share of any beneficiary in my estate.
7. For avoidance of doubt, if either of my children die before or within 30 days of me and leave children of their own who survive them then each of their children shall take their parent’s share and if there is more than one then they shall share equally in their parent’s share.
8. If any of my beneficiaries takes a gift under my will before the age of 18, my executor acting as trustee may spend money or use other property in my estate for the benefit of the beneficiary for purposes including but not limited to education, health, housing and travel.
9. Where any gift is made under this will and Capital Gains Tax or any other tax applies to the gift then the amount of tax shall be paid by the beneficiary or included in the amount of the gift made to the beneficiary.
10. In the event the father / mother of my child/ren is not able or willing to care for any child of mine after my death I appoint my sister, Kimberley Ranges as their guardian.
............................................................... Vanilla Sporty Spouse, the testatrix, signs here
We saw Vanilla Sporty Spouse sign this Will and now sign as witnesses in her presence and in the presence of each other:
............................................................... ...............................................................
Witness Witness
Important: this is a Sample Will only and you must take responsibility for completing your own will and should obtain legal advice on your intentions and circumstances before you do so. Thanks, Mark Swivel
Family Provision Claims Explained
· When you make a will you can decide what happens to your property.
· There is no automatic right, under any valid will, for anyone to receive a share of your estate.
· However, family members and others can have rights under family provision legislation (in NSW this is found in the Succession Act 2006 (NSW)).
· A court can order ‘adequate provision’ for the maintenance of people who were somehow ‘dependent’ on you if they are not provided for in the will.
· A range of people can make a claim, but not all claims will be successful.
· A Court considers many factors when deciding if a claim is worthy one.
Who can make a claim?
· Your spouse or de facto partner at time of death
· Your children (includes any born outside of marriage, children born using assisted conception and adopted children)
· Your former spouse (we’ll get back to this)
· Anyone wholly or partly dependent on you who has been a member of your household at any time (related or nor) or who is your grandchild.
· Anyone you were living with in a close personal relationship at time of death (not married or de facto, but providing domestic support and personal care).
An application for a claim should be made within 12 months of the date of death.
A Court will consider these factors in determining an applicants claim:
· Have they been left without adequate provision for maintenance and support?
· How big is the estate? How much is there to go around?
· What was the nature of the relationship with the deceased?
· Any obligations owed by the deceased person to the applicant
· The applicant’s present and future financial needs and resources, including earning capacity
· If the applicant is living with another person, the other person’s financial circumstances
· The age of the applicant
· Did the applicant assist the deceased to acquire their wealth or assets, financially or by other means of support? E.g. sacrificed their own earning capacity to allow the deceased to exploit theirs? Has the applicant already been compensated for this?
· Was the deceased financially supporting the applicant at the time of their death?
· The character and conduct of the applicant
· Anything else the Court thinks is relevant.
Additional points to consider:
· If you have given a reason as to why someone is excluded from your will, e.g. in your instructions to a solicitor or stated in your will, this will be taken into account by the Court to determine an application.
· Even though your former spouse can make a claim, the Court will look at their current status – remarriage, a new partner, any maintenance agreements, their current dependence on the deceased and any property settlement agreements under the Family Law Act.
· A person can waive their right to a family provision claim, but it must be approved by the Court – which will consider many factors when in approving a waiver, such as whether it is fair and reasonable and if the person received legal advice.
· Going to Court costs money, so often these issues are resolved by alternative dispute resolution, especially where estates are small the costs of proceeding to Court will often outweigh any potential benefit.
What happens where there is no will? Intestacy
If you die without a valid a will your estate is distributed under the law of intestacy.
Very generally speaking your property will be distributed in this order to next-of-kin:
1. Your surviving spouse/de facto partner and children
2. Immediate family
3. Next of kin
4. The Crown (but it is open to Crown to give your property to more distant relatives or others who are not related but dependent.
Intestacy is a more complicated than this but needless to say, if you want to have say in what happens to your property, a valid will is the way to go!
Important: This is general information on NSW law only and is not legal advice.