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A Will is a legal document that outlines how one’s assets should be distributed after they pass away. In case of both simple and complex estates, it is extremely important to create a legal Will.

For one, a Will ensures that family members of the deceased do not enter into disputes over estates with each other. The Will clearly indicates who should receive what. In the absence of such a Will, anyone with an entitlement over the Will can make claims and launch legal actions against other potential beneficiaries.

This is not only a costly procedure, but it also leads to mental distress. Moreover, note that a Will can only be in effect if it is legally valid. In Australia, various jurisdictions may have different rules and laws on what makes a Will legally valid. Each state and territory have their respective legislation that govern these matters.

For example, in New South Wales, the Succession Act (2006) is the leading legislation for Wills. Section 6 of this Act states certain requirements that the Will-maker must comply with to make a legally valid Will. Some of these requirements include:
  • The Will must be made in writing,
  • It must be signed by the Will-maker,
  • Two witnesses must sign the Will in the presence of the Will-maker.
Moreover, the testator or Will-maker must also have testamentary capacity. This refers to their mental ability to understand that they are executing a Will. They must be aware of the nature and extent of their assets and estate. However, note that in some parts of Australia such as Victoria, parties can make statutory Wills.

Statutory Wills enable parties without testamentary capacity to execute Wills by giving another person the authority to create a Will on their behalf. Only certain eligible people can make an application for a statutory Will on behalf of a party who lacks testamentary capacity.

Dying Intestate
Dying intestate refers to dying without leaving a valid Will behind. In such cases, certain intestacy laws apply. Depending on the circumstances of the testator who has passed away, the estate will then be distributed to their spouse, children, parents, former spouses etc.

But increasingly people have been a part of blended or mixed families. This includes cases where a person separates from their spouse or de facto partner and enters into another relationship. Moreover, in such family structures, there are step-children and biological children involved.

Therefore, the matters become more complex when the deceased with blended family structures died without leaving a legally valid Will.

In conclusion, it is extremely important to write a Will to ensure peace of mind for the testator as well as for the testator’s family. It ensures that family members do not fight over assets and estates following the death of a loved one. Wills and estate lawyers can help you assess the complexity of your estate and provide you with advice on the same.

Author info:

John Bui is the Principal Solicitor of JB Solicitors – a law firm based in Sydney, Australia. John is a Nationally Accredited family law Mediator and Arbitrator with over 10 years’ experience in family law and commercial litigation.

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