Do I need a will?

Telemon Lawyers > FAQs > Do I need a will?
Domenico Ghirlandaio: Jerome in his Study (c.1480)
It has been supposed St Jerome was considering how to exclude his spendthrift son from his estate:  Domenico Ghirlandaio: Jerome in his Study (c.1480)

You need a will if you want to control what happens to your assets after you die. You should also have a will if you want to make the administration of your assets easier for the person who survives you and ends up with that responsibility.

Without a will your estate will be divided according to the Rules of Intestacy and your estate will have a likelihood of a legal challenge.

Wills can either be very simple or very detailed and complex. They can be drafted such that you simply leave your estate to your partner, or, if they die before you, your estate goes to your children equally (or your children’s children). Such a will is commonly called a “husband and wife” will.

Alternatively wills can include testamentary discretionary trusts (where the estate assets are held on trust for certain beneficiaries). Such testamentary trust wills might be appropriate where the testator (or beneficiary) wishes to protect assets from possible claims, trustees in bankruptcy, or spendthrifts. Wills can also be “mutual” (not simply “mirror”) where there is a form of contract not to change the will.

Lots of lawyers will tell you of the ‘dangers’ of so-called DIY Will Kits. In some cases they work fine, but in some cases, due to lots of reasons, they present problems (see Estate of Plumwood [2010] NSWSC 257 as an example where, as His Honour Justice White comments, the drafting of the Will Kit did not make sense).

The difficulty for a non-legally trained person is knowing whether a DIY will-kit is appropriate for you. As a person gets older often re-drafting their will is something that happens more frequently, more complex bequests are considered, and knowing who might have a claim against an estate is a consideration that a testator (the person writing the will) should be aware of.

 

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