1. What is a Will?
A Will is a document which sets out how a person (the testator or willmaker) intends to dispose of his property after his death.
2. Why should I get a Will? Having a Will simplifies the disposal of the assets of a deceased person. It also allows them to be disposed of according to his wishes rather than by a formula.
3. Who can make a Will? Anyone over the age of 18 years can make a Will.
4. Is it necessary to go to a solicitor for a Will? No. The essence of a Will is simple and follows a standard format. It may be necessary on occasions to obtain advice on how to make more complex arrangements.
5. Can I leave my property to anyone? Yes, even to your dog! But beware, others may also claim.
6. Can I cut someone out of my Will? Yes, but you cannot stop a claim later. You make it difficult for unwanted claimants to proceed.
7. Does everything in my Will become binding on my executor? No. The executor can only do things which are legally possible at the time and in the best interests of the estate. Some of the things contained in a Will are ‘wishes’ and become discretionary. Anything in doubt can be determined by a judge or by agreement of all the parties involved in the estate.
8. What happens if my executor refuses to act? Your Will becomes partly inoperative. Another entitled person may proceed to make the application with reference to that Will and carry out the directions in the Will.
9. What happens to my property after my death if I have no Will? Your property will then be distributed according to a formula set out in the Act. An entitled person will make the application for Letters of Administration, if necessary.
10. Who should I choose to be my executor? Someone who is likely to survive you. It is common for spouses to appoint each other with a secondary appointment of someone else, say a child (over 18 years), in the event the other spouse dies. It is unwise to choose a solicitor or the Public Trustee.
11. What happens if I fail to make provisions for someone who should be provided for? Such a person who qualifies can make an application under the Succession Act Family Provisions for a share of the estate. Two things can happen – an agreement can be negotiated by the executor, or, the Supreme Court will make a decision.
12. Can I make provisions for beneficiaries who may be in some way disabled? Yes. Such a person should also have an enduring guardian appointed to manage the benefit as a trustee.
13. Is a Will made overseas or in another State, valid? Yes. Such a Will will be interpreted according to the law of the State in which the property is located rather than to the law of the state where the Will was made.