WILLS & LEGAL CAPACITY
The need for a Will
It is a common enough occurrence to have clients diminish the importance of doing a will in the deprecating self-perception that they do not have much. It is important to bear in mind however that the general uplift in real estate values over recent decades has meant that anyone already on the property ladder, however modestly, may well be having a substantial and hard-earned asset to their name. Anecdotal information suggests that a significant swathe of Australians have not drawn up a Will.
Legal Capacity
It is essential that a testator or testatrix (the person whose will is involved) possesses what is described as legal capacity. Cognitive or other decline, incapacity or other circumstances where a person is not aware of what they are doing mean that the Will drawn up in such circumstances may be held to be invalid.
The area of testamentary capacity can present many challenges to family of an estate. In the case Banks v Goodfellow (1870) LR 5 QB 549 which harks back to 1870 in England still held to be valid in English common law based countries, Australia being one, a gentlemen in possession of a substantial estate drew up a last Will with his niece as beneficiary. However, the niece herself died shortly thereafter and her Will provided for the estate to go to someone who was not part of the original family.
The matter went to the courts alleging testamentary incapacity of the deceased gentleman with lurid details of his hallucinations concerning spirits and visits made to him by previously dead acquantainces which were presented in court. The courts produced a 4 step test used as a measure of testamentary capacity which is still used today.
Check with us on yours or your loved ones particular cognitive status and what that entails for Will instructions and execution.
Revocation
Wills can be revoked and amended as many times as you wish, though cost and prudence suggest that this exercise be undertaken on a need to basis or as circumstances dictate. In general, a valid Will executed on a more recent date supercedes any Wills executed on any earlier dates.
FORMAL AND INFORMAL WILLS
Legislation provides for the criteria which meet legal requirements for acceptance as a Will, then called a formal Will. These attributes are found in the Succession Act 2006 (NSW); Wills Act 1997 (VIC); and Succession Act 1981 (QLD).
But in exigencies, the same legislation also allows for what is termed informal Wills, meaning that the formal criteria have not been met, but that the courts recognise the informal Will to contain the testamentary intentions of a deceased person.
Over time, an assortment of informal Wills have been presented by disputing parties, including phone videos, text messages and unsigned computer documents.
EXECUTORS AND BENEFICIARIES
An executor is the person appointed in the Will as responsible for the estate and its distribution to beneficiaries, in accordance with instructions contained in the Will.
Executors can be a single person or multiple persons, depending on the testator’s perceptions about the appointments he is making and what he or she considers is the best arrangement.
It is important these appointments are made with an eye on the inter-personal relationships involved. For example, executors appointed to act jointly who cannot cooperate or work with each other may not lead to efficient outcomes for the estate.
