Wills

Contributed by Maree van der Kwast and current to 1 September 2005

WHAT IS A WILL?

A will is a document which sets out the wishes of a person for the distribution of that person’s property upon death. It includes a codicil. In order for a will to be valid, it should meet certain formal requirements.

THE NEED FOR A WILL

If a person wishes his or her property to be disposed of in a particular way upon death then there is no other way to ensure this than by making a will. The amount of property and the order in which the next-of-kin take the property under intestacy (dying without making a will) rules may be directly against the wishes of the will maker. To avoid this possibility a will must be made.

Typically, people will seek the assistance of a lawyer or other legally trained people to help them with either making a will or administering an estate. It is not the aim of this chapter to eliminate the use of lawyers in this regard. The chapter will explain what the lawyer does, and hopefully remove some of the mystery of the legal processes. In some areas a lawyer need not be used. This may be because the expense of a lawyer is not warranted. Where this occurs it will be pointed out.

WHAT A WILL DOES

A will allows you to dispose of property that you own upon your death.
A will cannot do the following:

• deal with a beneficial interest in a family trust;
• deal with your share in a house if you own it with another person as a joint tenant;
• in many cases, deal with superannuation.
Usually, the rules that govern superannuation will provide that it will be paid to dependants (if you have any) rather than your estate. That means that your will cannot affect to whom it is paid. The rules relating to superannuation can be complicated and depend on the rules of the particular superannuation company. You should contact the company that deals with your superannuation and ask them what you need to do to make sure that your superannuation is paid to the person who you want to receive it; or
• make binding arrangements about how you are buried. That will be up to the executor (who is not obliged to follow your wishes). You can, however, make a binding direction that you not be cremated.

EXPLANATION OF TERMS

A person who makes a will is called a testator (male) and testatrix (female). Here the term ‘will maker’ is used to cover testator and testatrix. When a person dies and leaves a will, that person’s property (the estate) is distributed according to the wishes of the deceased as expressed in the will.

If a person dies without leaving a will, the estate is distributed to the deceased’s relatives in the order fixed by the Administration Act 1903 (WA). Such a person is said to have died intestate.

If a person dies and leaves a will that distributes only part of that person’s property, then that person is said to die partially intestate. The part of the property not dealt with by the will is distributed according to the Administration Act.

A will maker will usually appoint someone in the will to deal with the estate. That person is known as an executor (male) or an executrix (female).

The appointment of an executor or executrix to control and administer a person’s estate after his or her death is formalised and made official by the court in an order known as a Grant of Probate.

Where a person dies intestate, a person (usually a close member of the deceased’s family) can, upon application, be appointed by a court to deal with the intestate’s estate. Such a person is called an administrator or administratrix. This order of the court is called a Grant of Administration and the administrator or administratrix is granted Letters of Administration.

A person who receives a part of a deceased person’s estate is called a beneficiary.